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Full text of "International law and the changing character of war"

International Law Studies 



Volume 87 



International Law and the Changing Character of War 



Raul A. "Pete" Pedrozo and Daria P. Wollschlaeger 

Editors 




Naval War College 
Newport, Rhode Island 
2011 



INTERNATIONAL LAW STUDIES SERIES 

PRESIDENT, NAVAL WAR COLLEGE 
Rear Admiral James P. Wisecup, USN 

PROVOST, NAVAL WAR COLLEGE 
Ambassador Mary Ann Peters (Ret.) 

DEAN, CENTER FOR NAVAL WARFARE 

STUDIES 
Professor Robert Rubel 

CHAIRMAN, INTERNATIONAL LAW 

DEPARTMENT 
Professor Dennis L. Mandsager 

CHARLES H. STOCKTON CHAIR OF 

INTERNATIONAL LAW 
Professor Derek P. Jinks 

INTERNATIONAL LAW DEPARTMENT 
Colonel Daria P. Wollschlaeger, JA, USA 
Professor Raul A. "Pete" A. Pedrozo 
Captain (Select) Andrew J. Norris, USCG 
Commander James C. Kraska, JAGC, USN 
Lieutenant Colonel Eric W. Young, JA, USA 
Lieutenant Colonel George Cadwalader, USMC 

COMMANDING OFFICER, NAVAL WAR 

COLLEGE, RESERVE UNIT (LAW) 
Captain Rymn J. Parsons, JAGC, USN 

EDITORIAL OFFICE 

International Law Studies 

International Law Department 

Naval War College (36) 

686 Cushing Road 

Newport, RI 02841-1207 

Telephone: +1-401-841-4949 

Fax:+1-401-841-3989 

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Website: http://www.usnwc.edu/ild 

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Online Discussions 

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The International Law Studies ("Blue Book") series 
was initiated by the Naval War College in 1901 to 
publish essays, treatises and articles that contribute 
to the broader understanding of international law. 



OPNAVINST 5450.207 (series) formally tasks the 
Naval War College with publishing the "Blue Book" 
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Proper Citation 

The International Law Studies should be cited ac- 
cording to the following examples: 

- For citing a "Blue Book" with an editor: Title (editor, 

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For sale by the Superintendent of Documents, U.S. Government Printing Office 

Internet: http://bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 

Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 

ISBN 978-1-884733-93-2 



International Law Studies 



Volume 87 



Library of Congress Cataloging-in-Publication Data 

International law and the changing character of war / Raul A. "Pete" Pedrozo 
and Daria P. Wollschlaeger, editors. 

p. cm. — (International law studies series ; v. 87) 

Includes index. 

ISBN 978-1-884733-93-2 (hard cover) 

1. Information warfare (International law) 2. War (International law) 3. Cy- 
berterrorism. 4. Computer networks — Law and legislation — Criminal provi- 
sions. I. Pedrozo, Raul A. "Pete" II. Wollschlaeger, Daria P. 

KZ6718.I58 2011 

341.6— dc23 

2011022649 



Table of Contents 



International Law and the Changing Character of War 






Blue Books ix 

Foreword xvii 

Introduction xix 

Preface xxiii 

Part I: Opening Address 

I Combating Terrorists: Legal Challenges in the Post-9/1 1 World 

Nicholas Rostow 3 

Part II: Overview: International Law Challenges in 
Asymmetrical War 

II Mission Impossible? International Law and the Changing 

Character of War 
John F. Murphy 13 

Part III: The Changing Character of the Battlefield: The Use of 
Force in Cyberspace 

III Cyber Attacks as "Force" under UN Charter Article 2(4) 

Matthew C. Waxman 43 

IV Low-Intensity Computer Network Attack and Self-Defense 

Sean Watts 59 

V Cyber Operations and the Jus in Bello: Key Issues 

Michael N. Schmitt 89 



Part IV: Luncheon Address 

VI Who May Be Held? Military Detention through the Habeas Lens 

Robert M. Chesney 113 

Part V: The Changing Character of the Participants in War: 
clvilianization of warfighting and the concept of "direct 
Participation in Hostilities" 

VII The Changing Character of the Participants in War: 

Civilianization of Warfighting and the Concept of "Direct 
Participation in Hostilities" 
Charles Garraway 177 

VIII Direct Participation in Hostilities and the Interoperability of the 

Law of Armed Conflict and Human Rights Law 
FrancoiseJ. Hampson 187 

Part VI: The Changing Character of Weapon Systems: Unmanned 
Systems/Unmanned Vehicles 

IX Use of Unmanned Systems to Combat Terrorism 

Raul A. "Pete" Pedrozo 217 

X New Technology and the Law of Armed Conflict 

Darren M. Stewart 271 

Part VII: The Changing Character of Tactics: Lawfare in 
Asymmetrical Conflicts 

XI The Law of Armed Conflict in Asymmetric Urban Armed 

Conflict 
David E. Graham 301 

XII Lawfare Today . . . and Tomorrow 

Charles J. Dunlap, Jr 315 

XI I I The Age of Lawfare 

Dale Stephens 327 



VI 



XIV Warning Civilians Prior to Attack under International Law: 

Theory and Practice 
Pnina Sharvit Baruch and Noam Neuman 359 

Part VIII: The Changing Character of Legal Scrutiny: Rule Set, 
Investigation, and Enforcement in Asymmetrical Conflicts 

XV The Changing Character of Public Legal Scrutiny of Operations 

Rob McLaughlin 415 

XVI Litigating How We Fight 

Ashley S. Deeks 427 

XVII Asymmetric Warfare: How to Respond? 

Wolff Heintschel von Heinegg 463 

Part IX: Closing Address 

XVIII Concluding Remarks: LOAC and Attempts to Abuse or 

Subvert It 
Yoram Dinstein 483 

Appendix — Contributors 497 

Index 507 



vn 



BLUE BOOKS 

International Law 

Studies/Documents/Situations/Decisions/Topics/Discussions 

VOL 86 

The War IN IRAQ: A LEGAL ANALYSIS (Raul A. "Pete" Pedrozo ed., 20 10) (Vol. 86, US Naval War 
College International Law Studies). 

VOL 85 

The War in Afghanistan: A Legal Analysis (Michael N. Schmitt ed., 2009) (Vol. 85, US Naval 
War College International Law Studies). 

VOL 84 
International Law and Military Operations (Michael D. Carsten ed., 2008) (Vol. 84, US 
Naval War College International Law Studies). 

VOL 83 
Global Legal Challenges: Command of the Commons, Strategic Communications 
AND NATURAL DISASTERS (Michael D. Carsten ed., 2007) (Vol. 83, US Naval War College Inter- 
national Law Studies). 

VOL 82 
The Law of War in the 2 1st Century: Weaponry and the Use of Force (Anthony M. Helm 
ed., 2006) (Vol. 82, US Naval War College International Law Studies). 

VOL 81 
International Law Challenges: Homeland Security and Combating Terrorism 
(Thomas McK. Sparks 8c Glenn M. Sulmasy eds., 2006) (Vol. 8 1, US Naval War College Interna- 
tional Law Studies). 

VOL 80 
Issues in International Law and Military Operations (Richard B. Jaques ed., 2006) (Vol. 
80, US Naval War College International Law Studies). 

VOL 79 
International Law and the War on Terror (Fred L. Borch 8c Paul S. Wilson eds., 2003) 
(Vol. 79, US Naval War College International Law Studies). 

VOL 78 
Legal and Ethical Lessons of NATO's Kosovo Campaign (Andru E. Wall ed., 2002) (Vol. 

78, US Naval War College International Law Studies). 

VOL 77 

LILLICH ON THE FORCIBLE PROTECTION OF NATIONALS ABROAD (Thomas C. Wingfield 8c 
James E. Meyen eds., 2002) (Vol. 77, US Naval War College International Law Studies). 

VOL 76 
Computer Network Attack and International Law (Michael N. Schmitt 8c Brian T. 
O'Donnell eds., 2002) (Vol. 76, US Naval War College International Law Studies). 

VOL 75 
International Law across the Spectrum of Conflict: Essays in Honour of Professor 
L.C. Green on the Occasion of His Eightieth Birthday (Michael N. Schmitt ed., 2000) 

(Vol. 75, US Naval War College International Law Studies). 



Blue Books 



VOL 74 
George K. Walker, The Tanker War, 1980-88: Law and Policy (2000) (Vol. 74, US Naval 
War College International Law Studies). 

VOL 73 
ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL 
OPERATIONS (A.R. Thomas & James C. Duncan eds., 1999) (Vol. 73, US Naval War College In- 
ternational Law Studies). 

VOL 72 

The Law of Military Operations: Liber Amicorum Professor Jack Grunawalt (Mi- 
chael N. Schmitt ed., 1998) (Vol. 72, US Naval War College International Law Studies). 

VOL 71 
The Law of Armed Conflict: Into the Next Millennium (Michael N. Schmitt & Leslie C. 
Green eds., 1998) (Vol. 71, US Naval War College International Law Studies). 

VOL 70 
LEVIE ON THE LAW OF War (Michael N. Schmitt & Leslie C. Green eds., 1998) (Vol. 70, US Naval 
War College International Law Studies). 

VOL 69 
PROTECTION OF THE ENVIRONMENT DURING ARMED CONFLICT (Richard J. Grunawalt, John E. 
King & Ronald S. McClain eds., 1996) (Vol. 69, US Naval War College International Law 
Studies). 

VOL 68 

Readings on International Law from the Naval War College Review 1978-1994 (John 
Norton Moore & Robert F. Turner eds., 1995) (Vol. 68, US Naval War College International Law 
Studies). 

VOL 67 
Legal and Moral Constraints on Low-Intensity Conflict (Alberto R. Coll, James S. Ord 
& Stephen A. Rose eds., 1995) (Vol. 67, US Naval War College International Law Studies). 

VOL 66 
J. ASHLEY ROACH & ROBERT W. SMITH, EXCESSIVE MARITIME CLAIMS (1994) (Vol. 66, US Naval 
War College International Law Studies). 

VOL 65 
Targeting Enemy Merchant Shipping (Richard J. Grunawalt ed., 1993) (Vol. 65, US Naval 
War College International Law Studies). 

VOL 64 
THE LAW OF NAVAL OPERATIONS (Horace B. Robertson ed., 1991 ) (Vol. 64, US Naval War Col- 
lege International Law Studies). 

VOL 63 
ALFRED P. RUBIN, THE LAW OF PIRACY ( 1988) (Vol. 63, US Naval War College International Law 
Studies). 

VOL 62 
READINGS IN INTERNATIONAL LAW FROM THE NAVAL WAR COLLEGE REVIEW 1947-1977, II The 
Use of Force, Human Rights and General International Legal Issues (Richard B. Lillich & John 
Norton Moore eds., 1980) (Vol. 62, US Naval War College International Law Studies). 



Blue Books 



VOL 61 
READINGS IN INTERNATIONAL LAW FROM THE NAVAL WAR COLLEGE REVIEW 1947-1977, 1 Role 
of International Law and an Evolving Ocean Law (Richard B. Lillich 6c John Norton Moore eds., 
1980) (Vol. 61, US Naval War College International Law Studies). 

VOL 60 
DOCUMENTS ON PRISONERS OF WAR (Howard S. Levie ed., 1979) (Vol. 60, US Naval War Col- 
lege International Law Studies). 

VOL 59 
Howard S. Levie, Prisoners of War in International Armed Conflict (1977) (Vol. 59, 
US Naval War College International Law Studies). 

VOL 58 

WILLIAM T. MALLISON JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL 
AND LIMITED WARS (1966) (Vol. 58, US Naval War College International Law Studies). 

VOL 57 
(Not Published) 

VOL 56 
Neill H. Alford Jr., Modern Economic Warfare: Law and the Naval Participant 
(1963) (Vol. 56, US Naval War College International Law Studies). 

VOL 55 
Carl Q. Christol, The International Law of Outer Space (1962) (Vol. 55, US Naval War 
College International Law Studies). 

VOL 54 
NATO AGREEMENTS ON STATUS: TRAVAUX PREPARATOIRES (Joseph M. Snee ed., 1961) (Vol. 
54, US Naval War College International Law Studies). 

VOL 53 
Carl M. Franklin, The Law of the Sea: Some Recent Developments (With Particular 
Reference to the United Nations Conference of 1958) (1959-60) (Vol. 53, US Naval War 
College International Law Studies). 

VOL 52 
ROLAND J. STANGER, CRIMINAL JURISDICTION OVER VISITING ARMED FORCES (1957-58) (Vol. 
52, US Naval War College International Law Studies). 

VOL 51 

Brunson MacChesney, Situation, Documents and Commentary on Recent 
Developments in the International Law of the Sea (1956) (Vol. 51, US Naval War Col- 
lege International Law Situation and Documents). 

VOL 50 
Robert W. Tucker, The Law of War and Neutrality at Sea (1955) (Vol. 50, US Naval War 
College International Law Studies). 

VOL 49 
Hans Kelsen, Collective Security under International Law (1954) (Vol. 49, US Naval 
War College International Law Studies). 

VOL 48 

INTERNATIONAL LAW DOCUMENTS 1952-53: Peace Treaties; Defense Agreements; European 
Unions (Manley O. Hudson ed., 1954) (Vol. 48, US Naval War College International Law 
Documents). 



XI 



Blue Books 



VOL 47 
INTERNATIONAL LAW DOCUMENTS 1950-51: The Protection of Victims of War (Part I: Conven- 
tions before 1949; Part II: Geneva Conventions of 1949) (Manley O. Hudson ed., 1952) (Vol. 47, US 
Naval War College International Law Documents). 

VOL 46 

INTERNATIONAL LAW DOCUMENTS 1948-49: International Organization; Trials of War Crimi- 
nals; Rights Claimed by Littoral States in Adjacent Seas; et al. (Manley O. Hudson ed., 1950) (Vol. 
46, US Naval War College International Law Documents). 

VOL 45 
INTERNATIONAL LAW DOCUMENTS 1946-47: The Treaties of Peace of 1947; Instrument of Japa- 
nese Surrender; et al. (Manley O. Hudson ed., 1948) (Vol. 45, US Naval War College International 
Law Documents). 

VOL 44 
INTERNATIONAL LAW DOCUMENTS 1944-45: Contraband of War; The Crimea Conference; Act of 
Chapultepec; et al. (Payson S. Wild Jr. ed., 1946) (Vol. 44, US Naval War College International 
Law Documents). 

VOL 43 
INTERNATIONAL LAW DOCUMENTS 1943: Visit and Search; Destruction of Prizes; War Zones; De- 
fense Zones; etal. (Payson S. Wild Jr. ed., 1945) (Vol. 43, US Naval War College International Law 
Documents). 

VOL 42 
INTERNATIONAL LAW DOCUMENTS 1942: Orders to American Military Forces in India; Crimes 
against Civilian Populations in Occupied Countries; etal. (Payson S. Wild Jr. ed., 1943) (Vol. 42, 
US Naval War College International Law Documents). 

VOL 41 
INTERNATIONAL LAW DOCUMENTS 1941: Freezing of Japanese and Chinese Assets in the United 
States; The Atlantic Charter; et al. (Payson S. Wild Jr. ed., 1943) (Vol. 41, US Naval War College 
International Law Documents). 

VOL 40 
INTERNATIONAL LAW DOCUMENTS 1940: Proclamations and Regulations Concerning Neutrality 
of the United States in the War between Germany and Norway; etal. (Payson S. Wild Jr. ed., 1942) 
(Vol. 40, US Naval War College International Law Documents). 

VOL 39 
INTERNATIONAL LAW SITUATIONS 1939: Neutral Duties and State Control of Enterprise; Neutral- 
ity Problems; Contiguous Zones; et al (Payson S. Wild Jr. ed., 1940) (Vol. 39, US Naval War Col- 
lege International Law Situations). 

VOL 38 
INTERNATIONAL LAW SITUATIONS 1938: Belligerent and Neutral Rights in Regard to Aircraft; 
Force Short of War; et al. (Payson S. Wild Jr. ed., 1940) (Vol. 38, US Naval War College Interna- 
tional Law Situations). 

VOL 37 
INTERNATIONAL LAW SITUATIONS 1937: Protection by Vessels of War; Naval Protection during 
Strained Relations; et al. (George G. Wilson ed., 1939) (Vol. 37, US Naval War College Interna- 
tional Law Situations). 



xn 



Blue Books 






VOL 36 
INTERNATIONAL LAW SITUATIONS 1936: Insurrection, Belligerency, Statehood; Visit by and In- 
ternment of Aircraft; etal. (George G. Wilson ed., 1937) (Vol. 36, US Naval War College Interna- 
tional Law Situations). 

VOL 35 

INTERNATIONAL LAW SITUATIONS 1 935: Vessels and Neutral Ports; Action during Civil Strife; et al. 
(George G. Wilson ed., 1936) (Vol. 35, US Naval War College International Law Situations). 

VOL 34 

INTERNATIONAL LAW SITUATIONS 1934: Transfer and Capture; Interference with Ships; et al 
(George G. Wilson ed., 1936) (Vol. 34, US Naval War College International Law Situations). 

VOL 33 
INTERNATIONAL LAW SITUATIONS 1933: Contraband and Blockade; Independent Philippine Is- 
lands; et al. (George G. Wilson ed., 1934) (Vol. 33, US Naval War College International Law 
Situations). 

VOL 32 

INTERNATIONAL LAW SITUATIONS 1932: Belligerents in Neutral Waters; Artificial Structures and 
Maritime Jurisdiction; etal. (George G. Wilson ed., 1934) (Vol. 32, US Naval War College Inter- 
national Law Situations). 

VOL 31 
INTERNATIONAL LAW SITUATIONS 1931: Neutrality and Aircraft; Neutrality and Territorial Wa- 
ters; Belligerency and Maritime Jurisdiction (George G. Wilson ed., 1932) (Vol. 31, US Naval War 
College International Law Situations). 

VOL 30 
INTERNATIONAL LAW SITUATIONS 1930: London Naval Treaty; Absence of Local Authority; Bellig- 
erent Aircraft; etal. (George G. Wilson ed., 1931) (Vol. 30, US Naval War College International 
Law Situations). 

VOL 29 
INTERNATIONAL LAW SITUATIONS 1929: Neutrality and Vessels; Status of Islands in Pacific Ocean; 
Neutral Obligations (George G. Wilson ed., 1931) (Vol. 29, US Naval War College International 
Law Situations). 

VOL 28 

INTERNATIONAL LAW SITUATIONS 1928: Maritime Jurisdiction; Carriage of Mail in Time of War; 
Enemy Persons on Neutral Vessels (George G. Wilson ed., 1929) (Vol. 28, US Naval War College 
International Law Situations). 

VOL 27 

INTERNATIONAL LAW SITUATIONS 1927: Goods on Neutral Merchant Vessels; Visit and Search; 
Armed Merchant Vessels (George G. Wilson ed., 1929) (Vol. 27, US Naval War College Interna- 
tional Law Situations). 

VOL 26 
INTERNATIONAL LAW SITUATIONS 1926: Continuous Voyage; Submarines; Angary; Aircraft in 
Neutral Ports (George G. Wilson ed., 1928) (Vol. 26, US Naval War College International Law 
Situations). 

VOL 25 

INTERNATIONAL LAW DOCUMENTS 1925: REGULATION OF MARITIME WARFARE (George G. 
Wilson ed., 1926) (Vol. 25, US Naval War College International Law Documents). 



Xlll 



Blue Books 



VOL 24 
International Law Documents 1924: International Agreements (Five Power Limitation 
of Naval Armament; Nicaraguan Canal Route; Danish West Indies; etal.) (George G. Wilson ed., 
1926) (Vol. 24, US Naval War College International Law Documents). 

VOL 23 
INTERNATIONAL Law DECISIONS 1923: Vessels (TheHaelen, etc.); Armed Vessels (Submarine El 4, 
etc.); Search in Port (The Bernisse, etc.); etal. (George G. Wilson ed., 1925) (Vol. 23, US Naval War 
College International Law Decisions). 

VOL 22 
INTERNATIONAL LAW DECISIONS 1922: The Berlin; The Miramichi; The Maria; etal. (George G. 
Wilson ed., 1924) (Vol. 22, US Naval War College International Law Decisions). 

VOL 21 
INTERNATIONAL LAW DOCUMENTS 1921: CONFERENCE ON THE LIMITATION OF ARMAMENT 
(George G. Wilson ed., 1923) (Vol. 21, US Naval War College International Law Documents). 

VOL 20 
INTERNATIONAL LAW DOCUMENTS 1920: THE TREATIES OF PEACE WITH AUSTRIA AND WITH 

Hungary and Protocols and Declarations Annexed Thereto (George G. Wilson ed., 
1922) (Vol. 20, US Naval War College International Law Documents). 

VOL 19 
INTERNATIONAL LAW DOCUMENTS 1919: THE TREATY OF PEACE WITH GERMANY (George G. 
Wilson ed., 1920) (Vol. 19, US Naval War College International Law Documents). 

VOL 18 
INTERNATIONAL LAW DOCUMENTS 1918: NEUTRALITY, CONDUCT AND CONCLUSION OF 
HOSTILITIES (George G. Wilson ed., 1919) (Vol. 18, US Naval War College International Law 
Documents). 

VOL 17 
International Law Documents 1917: Neutrality; Breaking of Diplomatic Relations; 
WAR (George G. Wilson ed., 1918) (Vol. 17, US Naval War College International Law 
Documents). 

VOL 16 
International Law Topics 1916: Neutrality Proclamations and Regulations (George 
G. Wilson ed., 1917) (Vol. 16, US Naval War College International Law Topics). 

VOL 15 
International Law Topics 19 15: Documents on Neutrality and War (George G. Wilson 
ed., 1916) (Vol. 15, US Naval War College International Law Topics). 

VOL 14 
INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1914: Classification of Public Vessels; Regulations 
Relating to Foreign Ships of War in Waters under the Jurisdiction of the United States; et al. (George 
G. Wilson ed., 1915) (Vol. 14, US Naval War College International Law Topics and Discussions). 

VOL 13 

INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1913: Marginal Sea and Other Waters; Com- 
mencement of Hostilities; Limitation of Armaments; et al. (George G. Wilson ed., 1914) (Vol. 13, 
US Naval War College International Law Topics and Discussions). 



xiv 



Blue Books 



VOL 12 

INTERNATIONAL LAW SITUATIONS 1912: Merchant Vessels and Insurgents; Air Craft in War; Cuba 
Neutral; et al. (George G. Wilson ed., 1912) (Vol. 12, US Naval War College International Law 
Situations). 

VOL 11 

INTERNATIONAL LAW SITUATIONS 1911: Asylum in Neutral Port; Protection to Neutral Vessels; 
Destruction of Neutral Vessels; etal. (George G. Wilson ed., 1911) (Vol. 1 1, US Naval War College 
International Law Situations). 

VOL 10 
INTERNATIONAL LAW SITUATIONS 1910: Coaling within Neutral Jurisdiction; Declaration of War; 
Days of Grace; etal. (George G. Wilson ed., 1911) (Vol. 10, US Naval War College International 
Law Situations). 

VOL 9 

INTERNATIONAL LAW TOPICS 1909: THE DECLARATION OF LONDON OF FEBRUARY 26, 1909 
(George G. Wilson ed., 1910) (Vol. 9, US Naval War College International Law Topics). 

VOL 8 

INTERNATIONAL LAW SITUATIONS 1908: Termination of Liability for Breach of Blockade; The 
Twenty-Four Hour Rule; Sequestration of Prize; etal. (George G. Wilson ed., 1909) (Vol. 8, US Na- 
val War College International Law Situations). 

VOL 7 

INTERNATIONAL LAW SITUATIONS 1907: Fugitive from Cuban Justice at Guantanamo; Status of 
United States Auxiliary Collier in Foreign Harbor; et al. (George G. Wilson ed., 1908) (Vol. 7, US 
Naval War College International Law Situations). 

VOL 6 

International Law Topics and Discussions 1906: Use of False Colors; Transfer of Flag of 
Merchant Vessels during or in Anticipation of War; et al. (George G. Wilson ed., 1907) (Vol. 6, US 
Naval War College International Law Topics and Discussions). 

VOL 5 
INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1905: Inviolability of Private Property at Sea; 
Contraband of War; Restriction of Visit and Search; etal. (George G. Wilson ed., 1906) (Vol. 5, US 
Naval War College International Law Topics and Discussions). 

VOL 4 
INTERNATIONAL LAW SITUATIONS 1904: Merchant Vessels Adapted for Conversion into Auxiliary 
Cruisers; Rights of Foreigner under Martial Law; Asylum for Insurgent Troops on War Vessel; et al. 
(George G. Wilson ed., 1905) (Vol. 4, US Naval War College International Law Situations). 

VOL 3 
International Law Discussions 1903: The United States Naval War Code of 1900 
(George G. Wilson ed., 1904) (Vol. 3, US Naval War College International Law Discussions). 

VOL 2 
INTERNATIONAL LAW SITUATIONS 1902: Submarine Telegraphic Cables in Time of War; Asylum 
on Ships of War; Waters of Leased Territory; etal. (George G. Wilson ed., 1903) (Vol. 2, US Naval 
War College International Law Situations). 

VOL1 
INTERNATIONAL LAW SITUATIONS 1901: Coast Warfare; Contraband; Transportation of Military 
Persons; et al. (John B. Moore ed., 1901) (Vol. 1, US Naval War College International Law 
Situations). 



xv 



Foreword 



The historic International Law Studies ("Blue Book") series was initiated by 
the Naval War College in 1901 to publish essays, treaties and articles that 
contribute to the broader understanding of international law. This, the eighty- seventh 
volume of the "Blue Book" series, is a compilation of scholarly papers and remarks 
derived from the proceedings of a conference hosted at the Naval War College 
on June 22-24, 2010 entitled "International Law and the Changing Character 
of War." 

The June 2010 International Law Conference participants examined the inter- 
national law challenges presented by the changing character of war. The objectives 
of the conference were to catalogue the extent to which existing international law 
governs these changing aspects of warfare and to assess whether these develop- 
ments warrant revision of existing international law. Five panels of presenters ad- 
dressed topics that spanned the entire spectrum of armed conflict and focused on 
several emerging legal issues. Specifically, the panelists undertook an examination 
of the legal issues associated with the use of force in cyberspace, the civilianization 
of war fighting and the concept of "direct participation in hostilities," the use of 
unmanned systems, lawfare in asymmetrical conflicts, and legal issues associated 
with the investigation and enforcement of violations of the law in asymmetrical 
conflicts. 

Renowned international academics and legal advisers, both military and civil- 
ian, representing military, diplomatic, and non-governmental and academic insti- 
tutions from the global community contributed to the conference and this volume. 
Readers and researchers will find within this volume a detailed study of the emerg- 
ing international law challenges to be had as the character of war evolves, as well as 
their potential impact on the ongoing development of international law, the law of 
armed conflict and military operations. 

The conference and the "Blue Book" were made possible with generous support 
from the Naval War College Foundation, the University of Texas School of Law 
and the Israel Yearbook on Human Rights. The International Law Department of 
the Center for Naval Warfare Studies, Naval War College cosponsored the event 
with the International Institute of Humanitarian Law and the Lieber Society on the 
Law of Armed Conflict, American Society of International Law. 

On behalf of the Secretary of the Navy, the Chief of Naval Operations and the 
Commandant of the Marine Corps, I extend our thanks and gratitude to all the 



participants, contributing authors and editors for their invaluable contributions to 
this project and to the future understanding of the law of armed conflict. 



JAMES P. WISECUP 
Rear Admiral, U.S. Navy 
President, Naval War College 



xvni 



Introduction 



During the last several years we have witnessed impacts on, and changes in, 
modern warfare, to include cyber operations in Estonia and Georgia, 
civilianization of the battlefield in Iraq and Afghanistan, use of unmanned systems 
in Yemen and Pakistan, a lawless enemy invoking "lawfare" — particularly as it 
relates to civilian deaths and injuries incurred during lawful attacks on enemy 
targets — to undermine military operations and an enhanced level of public and 
judicial scrutiny of military actions. Legal practitioners, both military and civilian, 
and legal academics have worked to identify how international law governs these 
changing aspects of warfare and to determine if there are any shortfalls requiring 
changes to the existing legal framework. The legal debate on these matters has been 
both vexing and fruitful: but a number of unanswered questions remain, making 
these topics ripe for discourse. 

Following its tradition of the in-depth study and teaching of the manner in 
which the law impacts military operations, the Naval War College hosted a 2010 
conference entitled "International Law and the Changing Character of War." The 
conference brought together distinguished international law scholars and practi- 
tioners to examine the challenge to international law posed by the changing 
character of war. 

Dr. Nicholas Rostow, a former Legal Adviser to the National Security Council, 
opened the conference by setting the stage for the discussions to follow using as his 
scene setter the "Study on Targeted Killings" report authored by Professor Philip 
Alston for the UN Human Rights Council. Although Dr. Rostow, like many others, 
does not agree entirely with Alston's conclusions on the applicability of human 
rights law in armed conflict, and on the lack of transparency and accountability, he 
noted that this report, like many others, raises questions that pose a challenge to in- 
ternational law. Over the next two and a half days in five thematic panels the speak- 
ers presented their analyses of some of those challenges. 

As a conference highlight, the attendees were privileged to attend a luncheon 
address delivered by Professor Robert "Bobby" Chesney, the Charles J. Francis 
Professor in Law at University of Texas School of Law, who provided an overview 
of the emerging federal habeas corpus case law involving detainees held at Guan- 
tanamo Bay. He highlighted the differing detention standards used by the execu- 
tive branch and the federal courts' diverging assessments of the applicability of the 
law of armed conflict in these cases. 



Introduction 



In closing the conference Professor Yoram Dinstein reflected that changes in 
modern warfare have put legal scholars and practitioners representing nations that 
abide by the law of armed conflict unnecessarily on the defensive in the face of 
"modern barbarians" who conduct hostilities in an utterly unlawful fashion. He 
urged those scholars and practitioners to no longer remain silent, but to go on the 
legal offensive against those who resort to methods that violate the most basic prin- 
ciples of the law of armed conflict Professor Dinstein also encouraged resistance to 
those human rights activists who have erroneously and perilously asserted that 
during armed conflict human rights law should supplant the law of armed conflict, 
warning that should they prevail it would be impossible to effectively engage in 
hostilities. 

This edition of the International Law Studies ("Blue Book") series encapsulates 
the incredibly thoughtful insights and lessons learned that each presenter brought 
to the conference, including many gained from personal experience while serving 
in a variety of conflict zones. The product of their scholarship and roundtable dis- 
cussions are found within this volume. 

The conference was organized by Major Michael D. Carsten, US Marine Corps, 
of the International Law Department (ILD), with the invaluable assistance of Ms. 
Jayne Van Petten and other ILD faculty and staff. The conference was made possi- 
ble through the support of the Naval War College Foundation, the International 
Institute of Humanitarian Law, the University of Texas School of Law and the Is- 
rael Yearbook on Human Rights. Without the dedicated efforts and support of these 
individuals and organizations, the conference would not have been the exceptional 
success that it was. 

I would like to thank Professor Raul A. "Pete" Pedrozo and Colonel Daria P. 
Wollschlaeger, US Army, for serving as co-editors for this volume, Captain Ralph 
Thomas, JAGC, US Navy (Ret.), for his meticulous work during the editing pro- 
cess, and the staff of the College's Desktop Publishing Division, particularly Susan 
Meyer, Albert Fassbender and Shannon Cole. I also extend thanks to Captain 
Rymn Parsons, JAGC, US Navy, the Commanding Officer of Navy Reserve, Naval 
War College (Law), the reserve unit that directly supports the International Law 
Department. The unit's willingness to assist with the project and make personnel 
available to facilitate timely publication of this "Blue Book" was essential. I am 
grateful to all of the reserve officers, but specifically appreciate the exceptional 
work of Commander James W. Caley, JAGC, US Navy, for his comprehensive and 
painstaking work on the index. This publication is the culmination of the tireless 
effort of each of the previously named individuals, as well as numerous others, and 
is a tribute to their devotion to the Naval War College and the International Law 
Studies series. 



xx 



Introduction 



Special thanks go to Rear Admiral James P. "Phil" Wisecup, the President of the 
Naval War College, and Professor Robert "Barney" Rubel, Dean of the Center for 
Naval Warfare Studies, for their leadership and support in the planning and con- 
duct of the conference, and in the publication of this eighty- seventh volume of 
the "Blue Book" series. This "Blue Book" continues the Naval War College's long 
tradition of compiling the highest quality of scholarly inquiry into the most con- 
temporary and challenging legal issues arising from the entire hierarchy of mili- 
tary operations. 

The International Law Studies series is published by the Naval War College and 
distributed worldwide to US and international military organizations, academic 
institutions and libraries. A catalogue of all previous "Blue Books" appears after the 
table of contents. Volumes 59-87 of the International Law Studies series are avail- 
able electronically at http://www.usnwc.edu/ild. 



DENNIS MANDSAGER 
Professor of Law & Chairman 
International Law Department 



xxi 



Preface 



From June 22 to 24, 2010 the Naval War College hosted over one hundred and 
eighty renowned international scholars and practitioners, military and civil- 
ian, and students representing government and academic institutions to partici- 
pate in a conference examining a number of international law issues arising from 
the changing character of war. The conference featured opening, luncheon and 
closing addresses, as well as five panel discussions addressing specific legal issues 
that relate to the changing character of war. Panelist comments were summarized 
by a commentator, followed by questions from attendees. These discussions re- 
sulted in detailed examinations of key issues. 

The following conference summary was prepared by Commander James Caley, 
JAGC, US Navy, a member of the Navy Reserve unit that supports the Naval War 
College's International Law Department. The summary recapitulates the high- 
lights of each of the conference speakers' presentations. As co-editors, we are 
deeply indebted to Commander Caley for his attention to detail and assistance in 
facilitating the publication of this "Blue Book." We would also be remiss if we did 
not thank Captain Ralph Thomas, JAGC, US Navy (Ret.), for his outstanding sup- 
port and dedication in editing the submissions for this volume of the International 
Law Studies series. We also extend our sincere appreciation to Susan Meyer of the 
Naval War College's Desktop Publishing Division for expertly preparing the page 
proofs. Additionally, we would like to thank Albert Fassbender and Shannon Cole 
for their excellent work in proofreading the conference papers. The quality of this 
volume is a reflection of their professionalism and outstanding expertise. 

Opening Address 

Dr. Nicholas Rostow, a former Legal Adviser to the National Security Council, de- 
livered the opening address. Focusing on what some refer to as targeted killings and 
others call extrajudicial executions, Dr. Rostow critically examined the interplay 
between the law of armed conflict (or international humanitarian law) and the 
burgeoning body of human rights law. Dr. Rostow's remarks suggested that the in- 
terjection of human rights law into armed conflict has created dangerous and divi- 
sive ambiguity in, and uncertainty as to, what law should apply and how, the effect 
of which will be to worsen, not ameliorate, the nature of war. 



Preface 

After first highlighting the agenda and identifying issues dividing the interna- 
tional community, Dr. Rostow critiqued the report, released in May 2010, entitled 
"Study of Targeted Killings" prepared by United Nations Special Rapporteur Philip 
Alston. In the report, Alston challenges the legality of targeted killings through the 
use of drones in Afghanistan and Pakistan. Critical of nations such as the United 
States, Russia and Israel that authorize drone attacks based on self-defense, Alston 
questions the credibility of that justification and notes that, even if such action 
could be justified, targeting of individuals still requires compliance with the law of 
armed conflict and human rights law. 

Dr. Rostow argued that Alston fails to examine individual actions or apply the 
correct law, furnishes no explanation as to whether his analysis was predicated 
upon international humanitarian law or human rights law, and fails to articulate 
what he means by human rights law. Dr. Rostow also questioned Alston's views 
that direct participation in hostilities, as defined in Common Article 3 of the 1949 
Geneva Conventions and Additional Protocol I, should be narrowly construed, ap- 
plying only to persons observed to be actively engaged in hostilities. Dr. Rostow 
urged a broader interpretation, tempering his view with the caveat that "the United 
States has no interest in catching people in counterterrorism nets that have nothing 
to do with terrorism." 

Dr. Rostow rejected Alston's views that the decision to employ force in self- 
defense should hinge on the availability of "smart" weapons, and that Central 
Intelligence Agency (CIA) officers who operate drones are unlawful combatants 
because they do not wear uniforms. In closing, Dr. Rostow exhorted the attendees 
to seek greater clarity and certainty in the challenging issues to be addressed dur- 
ing the conference. 

Panel I: The Changing Character of the Battlefield: 
The Use of Force in Cyberspace 

Panel I tackled the complex legal issues underlying this potent and growing form of 
warfare. Moderated by Captain Stacy Pedrozo, JAGC, US Navy, of the Naval Jus- 
tice School faculty, the panel, consisting of Columbia Law School professor Mat- 
thew Waxman, Durham University Law School professor Michael Schmitt and 
Professor Derek Jinks, current Stockton Chairholder at the Naval War College, 
used recent large-scale cyber attacks in the countries of Estonia and Georgia to il- 
lustrate how cyber warfare may be conducted and how difficult it is to combat, es- 
pecially with regard to the issues of identification and attribution. Other significant 
issues explored included when does a cyber attack constitute use of force, what ave- 
nues of response (kinetic v. non-kinetic) may exist and what is the responsibility of 



xxiv 



Raul A. "Pete" Pedrozo and Daria P. Wollschlaeger 

States for attacks launched by non-State actors from within those States. Professor 
Jinks raised additional questions as to the appropriate burden of proof for State re- 
sponsibility, noting that three competing standards (clear and convincing, beyond 
a reasonable doubt and fully conclusive) have been advanced. 

Captain Pedrozo opened the panel with a summary of the April 2007 cyber at- 
tacks in Estonia, which resulted in defacement of, and denial of service from, 
websites belonging to the Estonian Parliament, banks, ministries, schools, newspa- 
pers and broadcasters. Several websites were forced to shut down for a few hours or 
in some instances even longer when these sites, which typically received one thou- 
sand visits a day, were flooded with two thousand visits per second. Estonia ac- 
cused Russia of direct involvement but failed to furnish proof, and no clear picture 
has ever been produced as to whether this was ever a State-sponsored event. Esto- 
nia charged only one person, an ethnic Russian Estonian, who was eventually con- 
victed of attacking the website of the Estonian Reform Party. He was fined 
approximately $1,640. Russian authorities refused to help with the investigation. 

Professor Waxman commented that cyber attacks are both legally and factually 
difficult to characterize. Legally speaking, Article 2(4) of the United Nations Char- 
ter prohibits any State from using force against another, which, in the view of 
many, means use of kinetic force and, hence, would not prohibit cyber attacks. In 
the view of others, coercion alone — either by economic pressure or other mode — 
is enough to constitute a use of force. The problem is distinguishing lawful from 
unlawful coercion. Factually, cyber attacks are difficult to identify and attribute, 
making it hard to assign culpability. This is not a new problem for Article 2(4) anal- 
ysis as there is much UN case history from the proxy conflicts of the Cold War. 

Professor Schmitt observed that there is authority for the proposition that un- 
less there is an armed attack, a State cannot respond in self-defense within the 
meaning of Article 51 of the UN Charter without authority from the Security 
Council. In Professor Schmitt's view, however, States have a right to defend them- 
selves before an attack with a response authorized at the last opportunity to prevent 
an attack. The self-defense right includes the right to respond kinetically to cyber 
attacks so long as the response is proportional. With respect to non-State actors 
(e.g., insurgent groups), a proper response to a cyber attack maybe to first demand 
that the host State take action against the non-State actors and, if unproductive, at- 
tack only if the right of the host State to defend its sovereignty is weaker than the 
right of the attacking State to self-defense. 

A more difficult issue may be ascertaining the relevant standard of proof for 
proving cyber attack liability. Clear and compelling evidence is the proposed stan- 
dard, but maybe impossible to reach given current levels of technology, which can- 
not overcome identity masking. Professor Jinks pointed out that identifying the 



xxv 



Preface 

cyber perpetrator is essential to any response in self-defense and that identification 
is very difficult. Perpetrators operate in decentralized networks and can easily mask 
their identities. Though Article 51 of the UN Charter requires proof of State action 
in order to respond, there is widespread precedent of States responding to violent 
attacks from non-State actors under justification of self-defense, to include the 
Caroline case. 

If States have a right to respond to non-State actors in the territory of another 
State, they still must meet a high standard of proof and perhaps the host State must 
first given the opportunity to deal with the non-State actors. According to Profes- 
sor Jinks the development of an accountability framework requires (i) establishing 
a legal standard for State response and (ii) agreement on the appropriate standard 
of proof. At this juncture, a State may respond if it is able to prove the host State 
exercises "control," as is the case when a State employs contractors. An alternative 
basis may exist under Article 51 if the State acknowledges and adopts the action of 
the non-State actor, is unable to assist in neutralizing the threat or harbors the re- 
sponsible group. The most appropriate standard of proof may be clear and con- 
vincing evidence, though the International Criminal Tribunal for the former 
Yugoslavia uses the standard of "beyond a reasonable doubt" and the International 
Court of Justice employs a standard of fully conclusive evidence. Given the varying 
existing standards of proof and the difficulty of meeting any one of them in a cyber 
context, there may be a need to relax both the standard of State responsibility and 
the standard of proof. To relax the standard of proof is to invite significant collat- 
eral costs. The solution is to forge an international consensus on State obligations 
and the consequences of breaches. 

The cyber attacks in Estonia involved civilian targets. Can cyber attacks be di- 
rected at civilians? To be sure, violent attacks are prohibited but non-violent cyber 
attacks do not necessarily run afoul of international humanitarian law. Perhaps the 
issue should turn on the consequences of the attack, the seriousness of which, in 
the cyber arena, might justify an armed response. The objective of the attack also 
raises issues. For example, the cyber attack on the Georgian Ministry of Defence 
was directed at a military target. The indirect effects on commerce of an attack on a 
military target may also be deemed to be direct, if they are foreseeable. Finally, 
those conducting the cyber attack are often civilian contractors. The "direct partic- 
ipation in hostilities" standard should therefore apply. 

Luncheon Address 

University of Texas School of Law professor Robert Chesney delivered a thought- 
provoking luncheon address that recounted the results of the thirty-three habeas 



xxvi 



Raul A. "Pete" Pedrozo and Daria P. Wollschlaeger 

corpus proceedings in US federal courts involving detainees held at Guantanamo 
Bay. Professor Chesney explored the differing detention standards utilized by the 
Bush and Obama administrations, the 2001 statute authorizing military force 
against terrorists and the statutes pertaining to military commissions. Professor 
Chesney also noted the widely diverging conclusions reached by trial and appellate 
judges regarding the applicability of the law of armed conflict to these cases. 

Beginning with the general observation that over the last several years great 
interest has been taken in US detention operations in Guantanamo Bay but not 
Iraq or Afghanistan, Professor Chesney suggested that the volume of habeas litiga- 
tion by Guantanamo detainees is explained by the fact that these detainees are con- 
fined outside the reach of the United Nations or other international body, 
therefore in every practical sense held within the constant jurisdiction of the 
United States alone. 

Of the thirty-three decisions by Article III courts addressing the merits of 
Guantanamo detainee petitions for habeas corpus, nineteen granted relief, result- 
ing in the release of eleven detainees. Fourteen detainees have lost on the merits, 
with two of these cases affirmed on appeal. The definition of who maybe detained 
pursuant to the Authorization for Use of Military Force for acts related to interna- 
tional terrorism is still evolving. The current standard authorizes detention of per- 
sons who were members of — or substantially supported — Taliban or al-Qaida or 
associated forces engaged in hostilities against the United States or coalition part- 
ners. The definition is informed by law of war principles, yet the DC Circuit Court 
of Appeals opined that the law of war is irrelevant to this formulation, deciding that 
domestic law, grounded in the Military Commissions Act, furnishes the relevant 
statutory background. In Professor Chesney's view, the varied judicial opinions 
make this area ripe for further legislative action. 

Panel II: The Changing Character of the Participants in War: Civilianization 
ofWarfightingand the Concept of "Direct Participation in Hostilities" 

Panel II, which was moderated by Professor Charles Garraway, Associate Fellow of 
the Royal Institute of International Affairs (Chatham House) in the United King- 
dom, wrestled with contentious issues surrounding the concept of direct participa- 
tion in hostilities (DPH). Panel members Ryan Goodman, a New York University 
law professor; Brigadier General Blaise Cathcart, Judge Advocate General of the 
Canadian Forces; Francoise Hampson, an Essex University law professor; and Dr. 
Nils Melzer, legal advisor to the International Committee of the Red Cross (ICRC), 
examined the ICRC's controversial 2009 Interpretive Guidance on the Notion of 
Direct Participation in Hostilities (IG) and the extent to which the IG does or does 



xxvn 



Preface 

not reflect international law. Among the salient issues considered were the con- 
trasting and confusing status- and behavior-based approaches in international hu- 
manitarian law and human rights law to determining when civilians are "directly 
participating in hostilities," thereby losing protections against direct attack other- 
wise provided to civilians under law. 

Professor Garraway opened the panel by describing the 2009 IG as both un- 
controversial and highly controversial. International humanitarian law hinges on 
the principle of the distinction between combatants and non-combatants. Non- 
combatants are presumed not to be directly participating in hostilities, and there- 
fore are entitled to protection from attack. In the ICRC's view, Professor 
Garraway noted, civilians lose this protection if — but only if, and only for so long 
as — they directly participate in hostilities. 

Professor Goodman disagreed with the ICRC interpretation of international 
law in Section IX, "Restraints on the Use of Force," noting that the IG failed to 
identify specific treaty law and State practice in support of its position. Professor 
Goodman also noted the law of war already contains restrictions applicable to the 
killing of an otherwise legitimate target, to include combatants who are hors de 
combat, escaping prisoners of war; and actions taken in reprisal. He noted that such 
restrictions may seemingly support the ICRC's position on restraints of the use of 
force, but not to the extent which the IG suggests. 

Professor Hampson discussed the ongoing debate regarding the interrelation- 
ship between international humanitarian law and human rights law with respect to 
targeting. Specifically, given the nature of a given conflict, she analyzed the applicable 
law (Hague and Geneva treaty law and customary international law) and when 
each might apply. She noted that the ICRC position relies on both human rights law 
and the application of a law enforcement paradigm, which utilizes a behavior- 
based approach to distinguish civilians from combatants. Hence, when a civilian 
behaves like a combatant by engaging in hostilities, he loses the protection from at- 
tack that is accorded civilians during that action only. In contrast, international 
humanitarian law uses primarily a status-based approach for distinguishing civil- 
ians from combatants. The ICRC in the IG now accepts that a member of an armed 
group exercising a continuous combat function creates a category that is status 
based. Logically, then, for status-based targeting decisions to be lawful, LOAC has 
to prevail over human rights law. Professor Hampson notes, however, that the 
problem is a bit more complex depending on the nature of the conflict and, in fact, 
she argued that in some limited circumstances human rights law may prevail. 

Brigadier General Cathcart noted that distinguishing civilians from combatants 
is intelligence driven, and therefore must be well established for purposes of target- 
ing. Any doubt is resolved in favor of finding civilian status. 



xxvi n 



Raul A. "Pete" Pedrozo and Daria P. Wollschlaeger 

Finally, Dr. Melzer remarked that the purpose of the IG is to encapsulate the 
ICRC's interpretation of the current state of international law, and provide key 
legal concepts that can be used by legal advisors to guide military commanders and 
develop rules of engagement. Dr. Melzer also clarified that targeting should be 
based on the combat function of the target. Persons who function as combatants, 
and who are trained and have the capability, to participate in hostilities, are lawful 
targets. It is the ICRC's view that the question of whether a person loses the protec- 
tion of civilian status must be determined at the time of targeting. If a civilian joins 
an organized armed group, such person falls into a continuous combat function 
and can be lawfully targeted. On the other hand, persons that only intermittently 
participate in hostilities, without allegiance to any particular organized armed 
group, can be lawfully targeted only when they are performing a combat function. 
The intervening periods must be governed by law enforcement principles. 

Panel III: The Changing Character of Weapon Systems: 
Unmanned Systems/Unmanned Vehicles 

Panel III, moderated by Villanova University School of Law professor John 
Murphy, was comprised of Professor Pete Pedrozo of the Naval War College, Hina 
Shamsi of New York University School of Law, Colonel Darren Stewart of the San 
Remo Institute and Professor Ken Anderson of American University's Washing- 
ton School of Law. Its primary focus was unmanned (or remotely piloted) aerial 
vehicle (UAV) operations in Afghanistan and Pakistan. Ms. Shamsi, Senior Advi- 
sor to the Project on Extrajudicial Executions at New York University School of 
Law and a contributor to a recent United Nations special report on targeted killings 
(Alston Report), criticized recent UAV operations on multiple grounds, including 
lack of transparency and accountability, and the extent to which targeted killing 
destabilizes existing legal frameworks. Professor Pedrozo outlined the legal basis 
on which CIA-controlled UAVs are operated in Pakistan, while Professor Ander- 
son discussed whether geographic considerations delimit UAV use. 

Professor Murphy opened the panel by lauding unmanned drones as systems 
capable of precision targeting that minimize civilian casualties. In contrast, Ms. 
Shamsi, a contributor to the Alston Report, criticized drone (UAV) operations, ar- 
guing that they make it easier to kill and thereby facilitate an expansion of execu- 
tions beyond those that are legally justified under international humanitarian law. 
She further contended that the operation of drones by the CIA, though not illegal 
under international humanitarian law, should nevertheless be halted because the 
CIA is not capable of complying with the law of war and is not sufficiently transpar- 
ent in its operations to verify compliance. Moreover, she concluded, under human 



xxix 



Preface 

rights law, targeted killings are illegal because they are not designed to accomplish 
an objective, but are merely to kill. She observed that while the United States, Rus- 
sia and Israel have all justified drone attacks on the basis of self-defense, this justifi- 
cation cannot stand where the resulting deaths occur in another State's territory, 
such as in Pakistan. 

Professor Pedrozo noted that special rapporteur Alston did not possess a man- 
date to investigate or render conclusions with respect to international humanitar- 
ian law, and thus his assertions should be understood only insofar as they relate to 
human rights law. Additionally, he observed that CIA operations fully comport 
with the law of war. He asserted that drone operations taking place in Pakistan 
against Taliban and al-Qaida forces do not violate Pakistani sovereignty. 

Professor Anderson summarized the general view of the international legal 
community on drones, saying that they may be used in armed conflict or in law 
enforcement operations, subject to geographic limitations, and are governed by 
human rights law in those instances when human rights law is not superseded by 
international humanitarian law. This is in contrast to the view of the United States 
that drones may be deployed without geographic limitation against combatants 
wherever they are located when the United States chooses to exercise its lawful 
right of self-defense. 

Colonel Stewart commented that UAVs are like any other weapon platform; 
they have significant capabilities and vulnerabilities. As a result, to properly evalu- 
ate the use of UAVs they must be viewed in the context of the overall military plan 
or strategy. Only in such context can the UAV targeting be truly determined to be 
lawful or unlawful. Colonel Stewart also argued that evolving technologies, such as 
autonomous weapon systems, while enhancing the ability to neutralize threats, 
tend to replace human judgment with algorithms, a potentially unwise exchange. 
The legal community must be the driving force to ensure the lawful application 
and use of such emerging technologies. 

Panel IV: The Changing Character of Tactics: Lawfare in 
Asymmetrical Conflicts 

Panel IV delved into the lawfare phenomenon and its growing impact on how war- 
fare is conducted by the United States, Great Britain and Israel. The panel, moder- 
ated by Mr. David Graham of The Army Judge Advocate General's Legal Center 
and School, included Duke University School of Law professor Charles Dunlap, 
Ms. Ashley Deeks of Columbia Law School, Tel Aviv University professor Pnina 
Sharvit Baruch and Captain Dale Stephens of the Royal Australian Navy. Substan- 
tial comment was made on the September 2009 Report of the United Nations Fact 



xxx 



Raul A. "Pete" Pedrozo and Daria P. Wollschlaeger 

Finding Mission on the Gaza Conflict prepared by Justice Richard Goldstone 
(Goldstone Report), and the manner in which Hamas used the report in an effort 
to discredit and thereby constrain Israel. Observations were also made on the unin- 
tended consequences of recent attempts by military forces to limit civilian casual- 
ties in Afghanistan, such as the trend by insurgents to embed themselves even more 
closely and deeply within civilian populations. Professor Sharvit Baruch detailed 
the lengths to which Israeli forces now go — far above and beyond the requirements 
of international law — to avoid civilian casualties. 

Mr. Graham opened the panel with a discussion of asymmetric urban fighting 
with non-State actors, highlighting the Goldstone Report. The report discusses the 
legality of Israeli operations against Hamas in Gaza and finds thirty instances in 
which Israel purportedly violated the law of armed conflict, including reckless use 
of white phosphorus and flechette munitions. Mr. Graham questioned whether the 
Goldstone Report portends — or reflects — a fundamental shift in the manner in 
which principles of the law of armed conflict are applied in asymmetric armed 
conflict. 

Professor Sharvit Baruch discussed the exhaustive approach Israel takes to com- 
ply with the law of armed conflict prior to target approval, to include intelligence 
vetting, legal review of both preplanned and immediate targets, and extensive 
warnings to civilian populations. She viewed Article 57 (Precautions in Attack) of 
Additional Protocol I as being customary international law and focused her re- 
marks on Israel's efforts to comply with its dictates. 

Professor Dunlap, to whom the term "lawfare" is largely credited, described it as 
a method of exploiting the law during armed conflict to achieve operational ends. 
For instance, just prior to the first Gulf War, the United States purchased satellite 
imagery of coalition forces from multiple commercial companies, thereby denying 
that intelligence information to Iraq and obviating the need for military action to 
keep Iraq from obtaining the imagery. 

Professor Dunlap observed that insurgents are adept lawfare operators. He cited 
as an example that the law of armed conflict does not prohibit civilian casualties 
during combat operations; they are accepted as collateral damages under rules gov- 
erning necessity, distinction and proportionality. But when a US official an- 
nounces that the United States will not engage the Taliban if such engagement 
would risk the life of civilians, the Taliban will start to embed with civilians. If an 
attack occurs that kills or injures civilians, although the attack was lawful, media 
reports are often adverse. 

Ms. Deeks spoke on various court decisions and how they divide the United 
States and its European coalition partners. She focused on four broad categories of 
litigation: lawfulness of detention, lawfulness of treatment during detention, 



xxxi 



Preface 

lawfulness of a transfer of custody from one State to another and lawfulness of par- 
ticular intelligence activities. The differing decisions of the US and European 
courts on such cases are causing tensions in the operational environment. The Eu- 
ropean courts have provided less deference to the decisions of the executive branch 
in military and international affairs matters as compared to courts in the United 
States. As a result of such litigation risk, European military operations maybe cur- 
tailed to avoid gray areas in the law. In addition, a change in policy brought about 
by litigation can, over time, have a chilling effect on the willingness of coalition 
partners to work together and share information. She cited potential steps that 
could reduce the risk of litigation as including ensuring States' compliance with 
counterinsurgency (COIN) principles in an effort to win the hearts and minds of 
the affected population and the establishment of independent non-judicial 
mechanisms designed to oversee the decisions of the executive branch. 

Captain Stephens argued that lawfare is neither good nor bad. Laws by their na- 
ture are indeterminate, thereby creating gaps that require filling. Lawfare attempts 
to take advantage of such gaps. To fill such gaps, legal advisors attempt to use legal 
principles, which are generally moral concepts. These legal principles, if used prop- 
erly, can effectively be used as a means of counter-lawfare. One such way is to apply 
the COIN doctrine in asymmetric conflicts and to emphasize the rule of law in 
COIN operations as a tool of war. 

Panel V: The Changing Character of International Legal Scrutiny: 
Rule Set, Investigation and Enforcement in Asymmetrical Conflicts 

Panel V considered the unprecedented levels of public and judicial scrutiny now 
being given to the use of armed force. Panel moderator Captain Rob McLaughlin, 
Royal Australian Navy, and panel members Professor Wolff Heintschel von 
Heinegg of Europa-Universitat Viadrina, Commander Andrew Murdoch of the 
Royal Navy, Dr. Roy Schondorf of the Israeli Ministry of Justice and Commander 
James Kraska, JAGC, US Navy, a member of the Naval War College faculty, exam- 
ined instances of internal and external scrutiny, such as that occurring as a result of 
Israeli actions to enforce its naval blockade on Gaza. Concern was expressed that 
this scrutiny has the potential to dissuade military commanders from militarily ap- 
propriate and lawful actions due to the costs and burdens of such scrutiny, irre- 
spective of liability. 

Captain McLaughlin began by observing that all countries are subject to in- 
tense legal scrutiny in the operational environment, with non-governmental or- 
ganizations (NGOs), among others, well equipped to conduct independent 
investigations. Key considerations are who is investigating and the body of law 



xxxn 



Raul A. "Pete" Pedrozo and Daria P. Wollschlaeger 

applied in the investigation. Legal scrutiny is especially significant in the asym- 
metric context. 

Professor Heintschel von Heinegg asserted that the law of armed conflict does 
not recognize asymmetry. This law simply gives privileged status to certain per- 
sons. In asymmetric conflicts, one party attempts to compensate for military weak- 
nesses by taking advantage of the weaknesses imposed on the other party by the law 
of war. Examples are perfidy and use of human shields, though employing human 
shields would not necessarily prevent an attack under law of war principles. He 
maintained that the law of armed conflict is flexible, but often not helpful when ap- 
plied to asymmetric conflict. He opined that perhaps new law needs to be forged. 
With respect to investigations, nations must move quickly to publicly supply accu- 
rate information as to what had occurred. Professor Heintschel von Heinegg ob- 
served that enforcement in the asymmetric context is difficult. He indicated that 
the International Criminal Court could be useful in this regard, although its value 
may be overestimated by some. 

Commander Murdoch reviewed three cases to demonstrate the manner in 
which recent court decisions and related public scrutiny have negatively influ- 
enced British operational commanders. In each case there has been some form of 
military justice, civil proceeding, parliamentary review and/or public inquiry that 
took years to complete. This level of scrutiny is very costly in time and resources. It 
also exposes military and government personnel to personal and reputational risk. 
To help offset such risk, the military requires a well-resourced operational capabil- 
ity to respond to and, if possible, preempt a judicial challenge. 

Dr. Schondorf offered the perspective that Hamas has engaged in lawfare by 
routinely accusing Israel of war crimes. The purpose of the allegations was to dam- 
age Israel's reputation and force investigations. These tactics can be very effective 
for non-State actors because once an allegation is made, the reputation of the ac- 
cused State is immediately compromised. The non- State actor does not face the 
same risk. In addition, once an allegation is made a democratic State will take such 
an allegation seriously and conduct an investigation. In contrast, a non -State actor 
has no similar interest in conducting its own investigation and there is no public 
expectation that it do so. As a result, to discredit these allegations, nations are 
forced to expend enormous amounts of time and resources, but by the time the 
results of such investigations are completed the public is no longer concerned with 
the incident. 

Commander Kraska addressed the question of whether Israel's naval blockade 
of Gaza is subject to the law of naval warfare or the law of the sea. While noting dis- 
agreement, he argued that the law of naval warfare on blockade is applicable, even 
if the hostilities do not constitute international armed conflict, because the area is 



xxxin 



Preface 

one of continuous violence. This, he suggested, is consistent with the US Supreme 
Court interpretation of international law involving the North's blockade of the 
South in the American Civil War. 

Closing Address 

Professor Emeritus Yoram Dinstein of Tel Aviv University, the 1999 and 2002 
Stockton Professor at the Naval War College, delivered the closing address. His re- 
marks focused on the fact that scholars and military practitioners of the law of 
armed conflict have become too defensive and apologetic in the face of both (i) 
lawfare, which is used effectively by the adversaries of civilized nations, and (ii) in- 
creased pressure brought to bear by overzealous human rights activists and NGOs 
who desire a "regime change" from the law of armed conflict to human rights law. 
His basic theme was that there is no reason to be defensive; in fact, the focus of the 
discussion and the tone of the response need to be changed. 

In Professor Dinstein's view, there are two modern phenomena that have led 
civilized nations to become excessively apologetic and defensive when waging war. 
The first is that the "barbarians at the gate" — rogue States and terrorist organiza- 
tions — are exploiting a lesson from armed conflict in Vietnam, that is, that a civi- 
lized nation's warfighting effort can be effectively impeded by eroding public 
support for pursuing victory. In the war in Afghanistan, public support for con- 
fronting the enemy is eroded by highlighting civilian casualties as collateral dam- 
age in the course of hostilities. "We" (whom he defined as the scholars and military 
practitioners of civilized nations) have, in fact, allowed false notions about the 
unacceptability of civilian casualties, under the law of armed conflict, to take root 
and unnecessarily hamper our military operations. He stressed that the law of 
armed conflict takes civilian casualties as collateral damage for granted, and only 
requires belligerent parties to minimize them. 

The second phenomenon is that NGOs and others assert — wrongly and danger- 
ously — that human rights law supplants the law of armed conflict. The human 
rights NGOs have contributed to a misperception that lawful State action is unlaw- 
ful. Undeniably, human rights law can fill gaps in the law of armed conflict, where 
such gaps exist. The crux of the matter, however, is that the law of armed conflict 
constitutes lex specialis. It has been recognized as such by consistent State practice 
and by judicial opinions. 

Professor Dinstein believes that, if civilized nations are to prevail, scholars and 
military practitioners need to change the tone and tenor of the debate, making sure 
that the response to spurious criticisms is widely heard and understood. 



xxxiv 



Raul A. "Pete" Pedrozo and Daria P. Wollschlaeger 

Conclusion 

We hope that the thought-provoking articles published in this "Blue Book" will 
add to — and help shape — the debate on the multiple complex emerging legal is- 
sues presented by the changing character of war. The legal insights offered here to 
legal practitioners and scholars should assist them as they address these and other 
issues that may evolve in future conflicts. 

This "Blue Book" would not have come to fruition had it not been for the enor- 
mously successful conference made possible in large measure by the conference 
committee under the leadership of Major Mike Carsten, US Marine Corps, working 
with Mrs. Jayne Van Petten of the International Law Department, and the support 
provided by the Naval War College Foundation, the University of Texas School of 
Law, the International Institute of Humanitarian Law, the Lieber Society on the 
Law of Armed Conflict (American Society of International Law) and the Israel 
Yearbook on Human Rights. We thank these individuals and organizations for their 
enduring support and generosity. 



RAUL A. "PETE" PEDROZO DARIA P. WOLLSCHLAEGER 

Associate Professor Colonel, US Army 

International Law Department Judge Advocate General's Corps 



xxxv 



PARTI 



OPENING ADDRESS 



I 



Combating Terrorists: Legal Challenges in 
the Post-9/11 World 



Nicholas Rostow* 

Introduction 

It is a great pleasure to be back at the Naval War College and an extraordinary 
honor to be opening this conference. As I look out, I see colleagues of long 
standing. More important than that, although that fact is important, I see col- 
leagues who have been my teachers as I have pursued my own work. 

The annual International Law Department conferences famously address the 
most difficult and contentious topics in the field known variously as the law of 
armed conflict, laws of war and international humanitarian law (IHL). (While I re- 
gard these terms as coextensive, not everyone does, which itself is a source of con- 
fusion and controversy.) The coverage of this conference is equally broad and 
challenging: detention, civilianization of warfighting, the meaning of "direct par- 
ticipation in hostilities," the impact of drones, asymmetric warfare, and issues of 
enforcement and accountability. I imagine discussion also will touch on embar- 
goes and blockades. These topics are of operational, not just academic, interest. 
Participants here are well known for taking real-world concerns into account. This 
fact alone sets the conference apart. 



* Former Charles H. Stockton Professor of International Law, US Naval War College. The views 
expressed are my own and do not necessarily reflect the views of the US government or any other 
entity with which I am or have been associated. 



Combating Terrorists: Legal Challenges in the Post-9/11 World 

The themes to be examined over the next few days highlight different perspec- 
tives within the legal and political communities worldwide. While Americans may 
have fewer difficulties with seeing terrorists in the context of armed conflict than 
Europeans and others, this phenomenon is only a shorthand way of referring to 
differences of view that are of legal, political and social significance. At a conference 
in England recently, a US official was surprised to discover that the health of the In- 
ternational Criminal Court was the thermometer for gauging the health of the en- 
tire international legal system. 

I thought therefore to begin our conference with some thoughts about the UN 
Human Rights Council Report, dated May 28, 2010, of Professor Philip Alston of 
the New York University School of Law on "extrajudicial, summary or arbitrary 
executions," including "targeted killings." 1 It merits attention because the subject 
is at the center of debate about the lawful use of lethal force against terrorists and 
those who support, harbor, direct or finance them. It takes us back to September 
2001 and the rejection of a law enforcement-only — or mainly law enforcement — 
approach to combating terrorism. 

Alston's approach raises a number of questions and highlights a number of is- 
sues. I shall therefore begin with a summary of the argument and then note some 
questions about its assumptions and conclusions. 

The Alston Report 

Legal questions in armed conflict turn most often on the weapon chosen, the target 
and collateral damage. Lately, the extent and definition of the battlefield, particu- 
larly when combating terrorists, also are issues for analysis and debate. In addition, 
as a result of the International Court of Justice advisory opinion on the Israeli 
"wall," 2 whether or not a State has a right of self-defense under international law 
against attacks — either planned or executed — by terrorist groups, that is, non- 
State actors, continues to concern policymakers and commentators alike. To begin, I 
should make clear my views on this issue: terrorist groups such as Al Qaeda and 
others are engaged in hostilities with the United States and other States even 
though they are not themselves States. States from which they operate have an obli- 
gation under international law, whether customary or derived from binding UN 
Security Council resolutions, such as Resolution 1373 (200 1), 3 or treaties, to pre- 
vent terrorist groups from engaging in attacks and to put a stop to active and pas- 
sive support for terrorism. When a State is unable to carry out this duty, the State 
suffering attack is not without recourse, including an inherent right to use force if 
necessary and proportionate in self-defense. The necessity requirement is hardly 
trivial. Nor is the proportionality requirement: that quantum of force reasonably 



Nicholas Rostow 



necessary to bring an end to the condition giving rise to the right to use force in 
self-defense in the first instance. The use of force must conform to requirements in 
the law of armed conflict as well. 4 

Alston's Report has stimulated much interest because it addresses subjects of 
current concern. He begins by focusing on unmanned aerial vehicles and weapons 
fired from them as among the most controversial instruments in the conflict with 
terrorists. He asserts that "a missile fired from a drone is no different from any 
other commonly used weapon, including a gun fired by a soldier or a helicopter or 
gunship that fires missiles. The critical legal question is the same for each weapon: 
whether its specific use complies with IHL." 5 Alston concludes that assessment of 
each use of force to ensure compliance with the requirement of proportionality 
must be made with respect to "each attack individually, and not for an overall mili- 
tary operation." 6 He thus elides the jus ad bellum and thejws in hello. Each operates 
in different contexts and with different understandings; treating them as one leads 
to confusion, mistake of law and uncertainty. Recognizing that the proportionality 
standard must be met for a use of force to be lawful and that the principle of dis- 
crimination between military and civilian targets is at the core of the modern law of 
armed conflict, Yoram Dinstein put it better than Alston: those who plan attacks 
need to take into account the duty to minimize civilian casualties. 7 

Perhaps because his audience is the UN Human Rights Council and perhaps 
because the focus of his own work is international human rights law, Alston looks at 
uses of force with international human rights concerns foremost in his mind. (This 
observation in no way suggests that I do not share his aspirations for a world that re- 
spects and protects human rights.) Let us see what Alston does with his perspective. 

First, he takes a more limited view than I suspect would be shared in this audito- 
rium of what constitutes a legitimate target for killing in armed conflict: "'combat- 
ant' or 'fighter' or, in the case of a civilian, only for such time as the person 'directly 
participates in hostilities.'" 8 Alston states, without analysis, 

It is not easy to arrive at a definition of direct participation that protects civilians and at 
the same time does not "reward" an enemy that may fail to distinguish between civil- 
ians and lawful military targets, that may deliberately hide among civilian populations 
and put them at risk, or that may force civilians to engage in hostilities. The key, how- 
ever, is to recognize that regardless of the enemy's tactics, in order to protect the vast 
majority of civilians, direct participation may only include conduct close to that of a 
fighter, or conduct that directly supports combat. More attenuated acts, such as pro- 
viding financial support, advocacy, or other non-combat aid, does [sic] not constitute 
direct participation. 9 



Combating Terrorists: Legal Challenges in the Post-9/11 World 

Alston asserts that "direct participation" excludes activities that may support "the 
general war effort," e.g., "political advocacy, supplying food or shelter, or economic 
support and propaganda." 10 He adopts what he calls the "farmer by day, fighter by 
night" 11 distinction to protect the daytime farmer from being a legitimate target. 
Such an approach, which is included in Additional Protocol I 12 (and one of the rea- 
sons the United States is not a party), favors the terrorist. (My lawyer would have 
me say "arguably favors.") Alston prefers the guidance of the International Com- 
mittee of the Red Cross with respect to direct participation in hostilities — it may 
stop and start on a continuing basis. One becomes a legitimate target only when 
engaged in a targetable activity. 13 This is not a position that will win many advo- 
cates among those engaged in combating terrorists and their attacks. Further, if his 
goal is "to protect the vast majority of civilians," 14 then one might have thought he 
would have emphasized the importance of suppressing terrorism. Thus, Alston's 
Report suffers by seeming not to take terrorism so seriously as governments and 
publics do. 

The UN Security Council has suggested that one take a broader view. In Resolu- 
tion 1373, adopted following the 9/11 attacks, the Security Council "decided" that 
all States shall 

[ejnsure that any person who participates in the financing, planning, preparation or 
perpetration of terrorist acts or in supporting terrorist acts is brought to justice and en- 
sure that, in addition to any other measures against them, such terrorist acts are estab- 
lished as serious criminal offences in domestic laws and regulations and that the 
punishment duly reflects the seriousness of such terrorist acts. 15 

While engaging in criminal support for terrorism may not per se make one a lawful 
target, it does suggest that Alston is rather too quick to narrow the categories of 
legitimate military targets. I assume that he would regard command and control, 
training and supplying of materiel as putting one in the category of legitimate tar- 
get, but the fact that he excludes financiers raises a question. By not evaluating the 
impact of UN Security Council resolutions on his assumptions, Alston under- 
mines the usefulness of his work. 

Achieving a general definition of terrorism has bedeviled the international com- 
munity. At the same time, through a series of UN Security Council resolutions and 
multilateral treaties, the same community has narrowed the definitional gap for 
disagreement about whether a particular act is, or is not, terrorist by defining acts 
usually committed by terrorists as "terrorist." Alston seems to define "terrorist" in 
such a way as to make status severable, as Professor Harvey Rishikof likes to say. 



Nicholas Rostow 



Thus, for Alston, the terrorist can be many things at once, each one separable from 
the other, with different legal consequences for each. 

Second, Alston's emphasis on international human rights law in the fight 
against terrorists creates a legal unreality for those who combat terrorism. UN Se- 
curity Council resolutions are both more inclusive and more vague. Their language 
reflects political compromises achieved through the drafting process, compro- 
mises that allow unanimous adoption of counterterrorist resolutions. Thus, UN 
Security Council resolutions routinely reaffirm 

that terrorism in all its forms and manifestations constitutes one of the most serious 
threats to international peace and security . . . [and] the need to combat by all means, in 
accordance with the Charter of the United Nations and international law, including 
applicable international human rights, refugee and humanitarian law, threats to inter- 
national peace and security caused by terrorist acts. 16 

Those engaged in combating terrorism can use this Security Council language as a 
standard against which to evaluate plans. Alston's failure to consider the impact of 
Resolution 1373 and other Security Council counterterrorism resolutions limits 
the operational utility of his work. 

Alston insists that the laws of war and international human rights law apply in 
the context of armed conflict without analyzing either how they do or the conse- 
quences for military operations. Thus, Alston asserts, where the law of armed con- 
flict is unclear or uncertain, "it is appropriate to draw guidance from human rights 
law." 17 He does not specify the content of such law and whether, to the extent it de- 
rives from treaties, all or just some States are parties. The same is true in his treat- 
ment of the law of armed conflict as his references to the 1977 Geneva Additional 
Protocols show. 

Alston's operational concern is procedural. He argues that, as a result of failing 
to disclose the legal basis for individual targeting decisions and who has been killed 
with what collateral consequences, "clear legal standards [have been displaced] 
with a vaguely defined license to kill, and the creation of a major accountability 
vacuum." 18 As Alston notes, targeted killings have taken place in a variety of con- 
texts — Russia's war in Chechnya, the US war with Al Qaeda, Sri Lanka's war with 
rebel groups, and Israel's wars with Arab States, quasi-States and groups are a few 
examples. Alston sums up the situation as follows: 

Although in most circumstances targeted killings violate the right to life, in the excep- 
tional circumstance of armed conflict, they may be legal. This is in contrast to other 
terms with which "targeted killing" has sometimes been interchangeably used, such as 



Combating Terrorists: Legal Challenges in the Post-9/11 World 

"extrajudicial execution," "summary execution", and "assassination", all of which are, 
by definition, illegal. 19 

This approach to conceptually distinct acts reflects a rush to conclusion based on in- 
sufficient and imprecise analysis. The US official position, for example, is different. 

The US View 

Harold Koh, the State Department Legal Adviser, gave the Obama administration 
position in a speech in March 2010 to the American Society of International Law. 20 
He made a number of significant points that assist in deciding who is and who is 
not a lawful target. First, Mr. Koh said that the United States is engaged in a num- 
ber of armed conflicts simultaneously: "In the conflict occurring in Afghanistan 
and elsewhere, we continue to fight the perpetrators of 9/1 1: a non-state actor, al- 
Qaeda (as well as the Taliban forces that harbored al-Qaeda)." With respect to tar- 
geting, he stated, "U.S. targeting practices, including lethal operations conducted 
with the use of unmanned aerial vehicles, comply with all applicable law, including 
the laws of war." 

With regard to the authority to use force, Mr. Koh stated, "As a matter of inter- 
national law, the United States is in an armed conflict with al-Qaeda, as well as the 
Taliban and associated forces, in response to the horrific 9/11 attacks, and may use 
force consistent with its inherent right to self-defense under international law." He 
continued, "[I]n this ongoing armed conflict, the United States has the authority 
under international law, and the responsibility to its citizens, to use force, includ- 
ing lethal force, to defend itself, including by targeting persons such as high-level 
al-Qaeda leaders who are planning attacks." This point is important as all decisions 
about targeting, the location of the conflict and treatment of prisoners flow from it. 

Mr. Koh stated that the United States recognizes the applicability of the law of 
armed conflict, and the core principles of distinction and proportionality. Target- 
ing individuals who are legitimate military objectives, such as commanders, plan- 
ners, supporters and the like, is within international law. Killing such persons is not 
to deprive them of judicial due process, for none is due, and does not violate US 
legal prohibitions on assassination for the same reason: legitimate and lawful acts 
of self-defense are not crimes. Finally, Koh defends the use of unmanned vehicles 
as increasing the precision of attacks and limiting collateral damage. In this respect, 
Alston shares the US view. 

The US position raises questions just as the Human Rights Council report does. 
The question of the use of precision weapons is one such issue. What legal conse- 
quences flow from possession of them? Do they affect the way a State, as a matter of 



8 



Nicholas Rostow 



law, must conduct military operations, including those in exercise of the inherent 
right of self-defense codified in Article 51 of the UN Charter? Do precision weap- 
ons eliminate recognition that error is endemic to warfare and mean that civilian 
casualties, if they occur, must be intended (as the Goldstone Report suggests)? 21 
How does the requirement to distinguish between military and civilian targets af- 
fect, if it does, the right to use force in self-defense when the State with the right 
does not possess precision weapons, and its enemy hides among, or otherwise ex- 
ploits, civilians? 

These and other questions spring to mind in the course of studying the Alston 
Report and such other Human Rights Council documents as the Goldstone Re- 
port. 22 Each of them raises more questions than it answers. Alston raises a further 
issue: the status of Central Intelligence Agency officers engaging in armed conflict 
with Al Qaeda and its allies. Do they, as Alston asserts, not enjoy combatant status 
even if they meet the requirements of the Geneva Conventions? Should one distin- 
guish between the CIA officer engaged in cloak and dagger and those who engage 
in military operations and look and behave like the regular armed forces except for 
the source of their paychecks? 

Conclusion 

We shall be discussing these and other issues in the next few days. Their impor- 
tance to success in the effort to combat terrorism and terrorists is hard to overstate. 
Other issues are significant as well. They include the fact, which seems often to be 
forgotten, that the use of force is a political act aimed at political objectives. This is 
true whether the goal is capitulation or change of policy. For the United States, the 
goals invariably include persuading the adversary to comply with international legal 
standards of behavior. At the same time, the tactical choices made also have politi- 
cal consequences. These need to be considered as one goes forward with a use of 
force. In addition, calls for the introduction of judicial process into military 
decisions, not just the detention of prisoners, seem to be growing louder. Is such 
involvement of the judiciary necessary or wise? And what are the consequences of 
introducing judicial process as a routine part of military operations? 

As the war with Al Qaeda and its associates continues with no end in sight and 
with some groups pressing for criminal prosecutions of those fighting terrorists, 
getting the analysis and argument right is a political and legal necessity. Professor 
Alston's Report is not wrong in every respect; neither is it right — therefore more 
and better needs to be done. This conference will do some of that work. 



Combating Terrorists: Legal Challenges in the Post-9/11 World 

Notes 

1 . Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 
Study on Targeted Killings, Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 
2010) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/ 
14session/A.HRC. 14.24.Add6.pdf [hereinafter Alston Report]. 

2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 
Advisory Opinion, 2004 I.C.J. 136 (July 9). 

3. S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001). 

4. See, e.g., C.H.M. Waldock, The Regulation of the Use of Force by Individual States in Inter- 
national Law, 81 RECUEIL DES COURS 455 (1952); MYRES S. McDOUGAL & FLORENTINO P. 

Feliciano, Law and Minimum World Public Order: The Legal Regulation of 
International Coercion ( 1961); Yoram Dinstein, War, Aggression, and Self-defence 
(4th ed. 2005); and my own discussion in Wall of Reason: Alan Dershowitz v. The International 
Court of Justice, 71 ALBANY LAW REVIEW 953 (2008). 

5. Alston Report, supra note 1, U 79. 

6. Id.i93. 

7. Yoram Dinstein, The Conduct of Hostilities Under the Law of International 
ARMED CONFLICT 126 (2004). (Of course, the nuclear weapon raises a question about all these 
principles.) 

8. Alston Report, supra note 1 , 1J 30. Alston cites Common Article 3 of the Geneva Conven- 
tions as support for his assertion. It does not provide support but deals with an entirely different 
subject. 

9. Id. U 60 (citation omitted). 

10. Id.^61. 

11. Id. 

12. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3, reprinted 
in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed. 2000). 

13. Alston Report, supra note 1, U 62. 

14. Id. li 60. 

15. S.C. Res 1373, supra note 3, 1f 2(e). 

16. See, e.g., S.C. Res. 1904, pmbl. 1ffl 3-4, U.N. Doc. S/RES/1904 (Dec. 17, 2009). 

17. Alston Report, supra note 1, If 29. 

18. Id. H3. 

19. Id. H 10 (citations omitted). Alston cites Michael Schmitt and Hays Parks for the proposi- 
tion that "extrajudicial execution," "summary execution" and "assassination" are illegal. 

20. Harold Hongju Koh, Legal Adviser, US Department of State, Remarks at the Annual 
Meeting of the American Society of International Law: The Obama Administration and Interna- 
tional Law (Mar. 25, 2010), http://www.state.gOv/s/l/releases/remarks/139119.htm. 

2 1 . U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Terri- 
tories, Report of the United Nations Fact Finding Mission on the Gaza Conflict^ 61, 730, 838, 985, 
U.N. Doc. A/HRC/12/48 (Sept. 29, 2009) (Richard Goldstone), available at http://www2.ohchr 
.org/english/bodies/hrcouncil/docs/ 1 2session/A-HRC- 1 2-48.pdf. 

22. See, e.g., Nicholas Rostow, The Human Rights Council (Goldstone) Report and Interna- 
tional Law, 40 ISRAEL YEARBOOK ON HUMAN RIGHTS 275 (2010). 



10 



PART II 



OVERVIEW: INTERNATIONAL LAW 
CHALLENGES IN ASYMMETRICAL WAR 



II 



Mission Impossible? International Law and 
the Changing Character of War 



John F. Murphy* 



As a participant in the conference "International Law and the Changing 
Character of War," in this article I hope to present and support the thesis re- 
flected in the title to this essay, i.e., that the use and abuse of international law and 
the changing character of war have combined to place major obstacles in the way of 
the successful prosecution of armed conflict by US forces and their allies. In sup- 
port of this thesis, I shall be drawing extensively on examples arising out of "the 
changing character of weapon systems" panel, but I shall also be exploring other 
dimensions of "the changing character of war" to buttress this support. 

I. Challenges Posed by the Changing Character of Weapon Systems 

In the panel "The Changing Character of Weapon Systems: Unmanned Systems/ 
Unmanned Vehicles," an overarching theme was the issue whether the use of these 
new weapon systems was compatible with international law. As noted in particular 
in Professor Pedrozo's article, 1 the criticisms of the use of unmanned systems to at- 
tack adversaries outside of traditional combat zones like Afghanistan and Iraq have 



* Professor of Law, Villanova University School of Law. I want to acknowledge the excellent re- 
search assistance of John (Sean) E. Jennings III and Carolyn (Carly) Studer, third-year students 
at Villanova University School of Law, on this article. 



Mission Impossible? International Law and the Changing Character of War 

been especially sharp. The primary focus of the critics has been on the Central In- 
telligence Agency's (CIA) use of armed drones, a prime example of an unmanned 
aerial system or unmanned aerial vehicle, to kill leaders of the Taliban or Al-Qaeda 
in the Federally Administered Tribal Areas (FATA) of Pakistan. 

I make no attempt to address all of the numerous arguments advanced by the 
critics of the drone attacks, but rather limit my discussion to two closely related ar- 
guments: first, that the civilian nature of the CIA personnel utilizing the armed 
drones precludes them from engaging in armed conflict, and if they engage in 
armed conflict, this renders them "unlawful combatants"; and second, outside of 
Afghanistan and Iraq, the United States is not engaged in an armed conflict with 
the Taliban, Al-Qaeda or any other militant or terrorist group. If such attacks occur 
outside of an armed conflict, they must be treated as criminal acts and not armed 
attacks that give rise to the right to use military force in self-defense. Rather, they 
must be combated by law enforcement measures and governed by international 
human rights law, not the law of armed conflict, or, as some prefer to call it, inter- 
national humanitarian law. Because armed drones are not law enforcement tools, 
the critics contend, they may not be used outside of combat zones. 

The Effect of the CIA's Status as a Civilian Government Agency 

One of the most persistent critics of the CIA's use of armed drones has been Mary 
Ellen O'Connell, holder of the Robert & Marion Short Chair in Law at Notre Dame 
University. According to Professor O'Connell, the CIA is not bound by the Uni- 
form Code of Military Justice of the United States to respect the laws and customs 
of war and therefore it does not. 2 Moreover, according to O'Connell: 

Under the law of armed conflict, only lawful combatants have the right to use force 
during an armed conflict. Lawful combatants are the members of a state's regular 
armed forces. The CIA are not members of the U.S. armed forces. They do not wear 
uniforms. They are not subject to the military chain of command. They are not trained 
in the laws of war, including the fundamental targeting principles of distinction, neces- 
sity, proportionality, and humanity. 3 

O'Connell's remarks presume that the law of armed conflict governs the CIA's 
use of armed drones in the FATA in Pakistan. This is a debatable point; we shall re- 
turn to the issue below. But assuming arguendo that it does, the law of armed con- 
flict does not prohibit civilians, including intelligence agents, from participating in 
hostilities. As Pedrozo points out, 4 even Philip Alston, the UN Special Rapporteur 
on extrajudicial, summary or arbitrary executions, in his study on targeted killings, 
has conceded this point. 5 Moreover, the use of armed drones by CIA personnel 
does not necessarily constitute a war crime if it results in a death in the FATA. 6 

14 



John F. Murphy 



Only if the killing itself is conducted in a manner prohibited by the law of armed 
conflict, e.g., it involves the deliberate targeting of civilians not directly participat- 
ing in hostilities, does it constitute a war crime. Under such circumstances, it is ir- 
relevant who conducts the targeted killing, intelligence personnel or State armed 
forces; the actor who committed the killing, plus those who authorized it, can be 
prosecuted for war crimes. 7 

The civilian status of the CIA personnel does have other significant conse- 
quences. First, if they are captured by the enemy, they are not entitled to prisoner of 
war status. It is a matter of some debate whether they are to be treated as civilians or 
as unlawful combatants while they are detained. 8 Second, they may be attacked, ei- 
ther as members of an organized armed group or as civilian direct participants in 
hostilities. Third, they enjoy no belligerent immunity for their actions and thus 
maybe prosecuted, either for war crimes (e.g., deliberately killing civilians) or do- 
mestic crimes (e.g., murder) in a national court. 9 In other words, the absence of the 
right on the part of CIA personnel to participate directly in hostilities within the 
meaning of Article 43(2) of Additional Protocol I 10 has consequences, but is not in 
itself a violation of the law of armed conflict. 

At this writing, the media are full of commentary on the release of 75,000 US mili- 
tary documents on the war in Afghanistan by WikiLeaks. Although much of the 
commentary has focused on reports in the documents of Pakistan's Inter-Services 
Intelligence Directorate assisting the Taliban in Afghanistan in their use of impro- 
vised explosive devices (IEDs) against members of the Afghan government and co- 
alition forces, there are also many reports in the documents of the fallibility of 
aerial drones. For example, one document reported that communications were 
lost with a Reaper drone, armed with Hellfire missiles and 500-pound bombs, and 
an F-15 fighter plane had to be ordered to shoot it down before it crossed into 
Tajikistan. 11 These documents also reportedly indicate that some reports of civilian 
casualties were never made public. 12 

At this writing there are also conflicting reports about an attack by coalition 
forces occurring on July 23, 2010 that Afghan sources claim killed fifty- two civil- 
ians, a claim that has been denied by NATO officials, who stated that an investiga- 
tion NATO was conducting "has thus far revealed no evidence of civilians injured 
or killed." 13 To be sure, reports of large numbers of civilians killed in Afghanistan 
are not something new. Indeed, tensions between the Karzai government and the 
US government over civilian casualties allegedly caused by airstrikes have been a 
long-standing problem. As I stated on another occasion: 

Although the law of armed conflict clearly prohibits an intentional direct attack against 
the civilian population as such, and indeed categorizes it as a war crime, "there can be 



15 



Mission Impossible? International Law and the Changing Character of War 

no assurance attacks against combatants and other military objectives will not result in 
civilian casualties in or near such military objectives." In the latter case, the civilian ca- 
sualties are known as "collateral damage" and do not give rise to accountability of the 
attacker. Nonetheless, as the sovereign government of Afghanistan, President Karzai 
can order the complete cessation of airstrikes (he has done so on occasion), and as a 
matter of international law, the United States and its allies are bound to comply — even 
though such airstrikes are a crucially important factor in the battle against the Taliban, 
and the Taliban regularly intermingle among the civilian population in order to use 
them as human shields (itself a violation of the law of armed conflict) and then use ci- 
vilian casualties as part of their war propaganda effort. In short, the Taliban has been 
successfully engaging in so-called "lawfare," using false accusations of violations of the 
jus in hello in order to win public opinion to their side. 14 

Although the documents released by WikiLeaks apparently do not report the in- 
tentional targeting of civilians by CIA personnel in either Afghanistan or Pakistan, 
they do "suggest that the CIA has sharply increased its use of paramilitary units in 
Afghanistan, and provide details of unintended killings of civilians by Task Force 
373, a secret unit set up to kill or capture militant leaders." 15 Such unintended kill- 
ings do not constitute war crimes but they greatly undermine the war effort and in- 
crease the pressure on the Afghan government to prevent their recurrence, 16 as well 
as provide material for the Taliban war propaganda effort. 

The civilian status of the CIA drones also has legal significance. Rule 17 (a) of 
the air and missile warfare manual, 17 which, while it has no official status, is the 
product of a team of experts on the law of armed conflict and has been well received 
by governments, provides that only military aircraft are entitled to engage in armed 
attacks. There is no question that CIA drones are not military aircraft. It is arguable 
that rule 17 (a) of the manual reflects customary international law. If this argument 
is valid, the use of CIA drones in an international armed conflict would be a viola- 
tion of the customary law of armed conflict. 18 

There is a serious issue, however, as to whether the CIA drones are being used in 
an "international armed conflict," because of the ambiguity of the concept as ap- 
plied to current circumstances. In his leading treatise on the law of international 
armed conflict, Yoram Dinstein defines an international armed conflict as limited 
to conflicts "raging between two or more sovereign States." 19 As Dinstein acknowl- 
edges, however, "drawing a line of demarcation between inter-State and intra- 
state armed conflicts is not as simple as it appears to be at a cursory glance." 20 He 
points to Afghanistan in 2001 as an example. Prior to 2001 the Taliban regime 
fought a long-standing civil war with the Northern Alliance, which clearly consti- 
tuted solely an internal armed conflict. In 2001, however, the Taliban regime, 
which because of its control over most of the territory of Afghanistan constituted 
the de facto government of Afghanistan, "got itself embroiled in an inter-State war 

16 



John F. Murphy 



with an American-led Coalition as a result of providing shelter and support to the 
Al-Qaeda terrorists who had launched the notorious attack against the US on 
11 September of that year . . . ." 21 

Under current circumstances, however, the Taliban are no longer the de facto 
government of Afghanistan. Rather, the Karzai government is both the de facto 
and de jure government of Afghanistan. For their part the Taliban are involved in 
an insurgency against the Karzai government and use the FATA as a safe haven 
from which their forces and Al-Qaeda forces launch cross-border attacks into Af- 
ghanistan. Moreover, because of the deteriorating situation between the Taliban in 
Pakistan and the Pakistan government, it is arguable that the Taliban in Pakistan 
have launched an insurgency against the Pakistan government. 

If this scenario has some plausibility, then some further comments by Dinstein 
may be apposite: 

A non-international armed conflict arising in State A may also have spillover horizon- 
tal effects within a neighboring country (State B). ... In this scenario, insurgents 
against the Government of State A find temporary shelter within State B and ignite an- 
other "civil war," this time against the Government of State B. As long as the two gov- 
ernments of States A and B (acting separately or in cooperation with each other) wage 
hostilities against the insurgents, the two simultaneous conflicts — despite their cross- 
border effect — remain non-international in character. But if the two Governments be- 
come embroiled in combat against each other, the armed conflict changes its character 
and becomes inter-State. 22 

One may plausibly argue that Afghanistan and Pakistan are currently in the 
same position as States A and B in Dinstein's hypothetical. If so, it needs to be 
noted further that, although there are tensions between the Pakistan and Karzai 
governments, there is at present no armed combat between them. It well may be, 
then, that the conflicts in both Afghanistan and Pakistan should be classified as 
non-international in character. 

If it is correct to classify both of these conflicts as non-international, the civil sta- 
tus of CIA personnel or of CIA drones becomes irrelevant. This is because there is 
no counterpart in the law of non-international armed conflicts to Article 43(2) of 
Additional Protocol I. To the contrary, States often use their police and intelligence 
services in the fight against rebels. As to the status of aircraft, rule 17 (a) of the air 
and missile warfare manual's requirement that only military aircraft are entitled to 
engage in armed attacks expressly does not apply to non-international armed 
conflicts. 

Parenthetically, it may be noted that in Hamdan v. Rumsfeld, 23 the US Supreme 
Court rejected the assertion by the US government that since Al-Qaeda was not a 



17 



Mission Impossible? International Law and the Changing Character of War 

State and had not accepted to be governed by the rules set forth in the Geneva Con- 
ventions, its affiliates could not invoke their protections. Rather, the Court held 
that the so-called "war on terror" was a non-international armed conflict, and 
therefore that at a minimum Article 3, which is common to all the Geneva Conven- 
tions, applies to the conflict with Al-Qaeda. The validity of this holding as a matter 
of international law is debatable, however, since, as Dinstein has argued, "from the 
vantage point of international law ... a non-international armed conflict cannot 
possibly assume global dimensions." 24 Michael Schmitt buttresses this conclusion 
by noting that Common Article 3 itself defines the conflict to which it applies as 
"not of an international character occurring in the territory of one of the High 
Contracting Parties." 25 

Even the language Schmitt quotes from Common Article 3, however, has been 
subject to different interpretations. On the one hand, it can be interpreted as refer- 
ring only to "internal" armed conflicts, that is, civil wars or insurgencies. This ap- 
pears to be the interpretation Schmitt favors. On the other hand, it can be 
interpreted as referring more broadly to any armed conflict that is not between 
States. This appears to be the interpretation that the US Supreme Court in Hamdan 
favors. Under the latter approach the phrase means occurring in the territory of "at 
least one of the High Contracting Parties." 26 

These arguments favoring conflicting interpretations of Common Article 3, 
while interesting, need not be resolved for purposes of resolving the issue of the ef- 
fect of the CIA's civilian status, because neither interpretation would support the 
proposition that the "war on terror" is an international armed conflict. In this case, 
then, the civilian status of the CIA is irrelevant for determining whether the CIA's 
use of drones is compatible with international law. 

As Schmitt has noted, however, the Supreme Court in Hamdan "neglected to 
explain how it arrived at the determination that the 'war' with Al Qaeda qualified as 
an 'armed conflict,' a term of art in the law of war" 27 and the "condition precedent 
for applicability of the law of war." 28 We now turn to this issue. 

Is the United States Engaged in an Armed Conflict with Al-Qaeda or Any 
Other Militant or Terrorist Group? 

Neither the Geneva Conventions nor Additional Protocol I contains a definition of 
an "armed conflict." In contrast, Additional Protocol II defines non-international 
armed conflicts in such a way as to sharply limit the scope of the Protocol. 29 Para- 
graph 1 of Article 1 of Additional Protocol II applies to all armed conflicts not cov- 
ered by Additional Protocol I and 



18 



John R Murphy 



which take place in the territory of a High Contracting Party between its armed forces 
and dissident armed forces or other organized armed groups which, under responsible 
command, exercise such control over a part of its territory as to enable them to carry 
out sustained and concerted military operations and to implement this Protocol. 

Paragraph 2 of Additional Protocol II then provides that "[t]this Protocol shall not 
apply to situations of internal disturbances and tensions, such as riots, isolated and 
sporadic acts of violence and other acts of a similar nature, as not being armed 
conflicts." 

In the 1995 Tadic Interlocutory Appeal on Jurisdiction, 30 the International 
Criminal Tribunal for the former Yugoslavia addressed the preliminary issue of the 
existence of an armed conflict in response to a contention by the defendant that 
there had been no active hostilities in the area of the alleged crimes at the relevant 
time: 

[W]e find that an armed conflict exists whenever there is a resort to armed force be- 
tween States or protracted armed violence between governmental authorities and or- 
ganized armed groups or between such groups within a State. International 
humanitarian law applies from the initiation of such armed conflicts and extends be- 
yond the cessation of hostilities until a general conclusion of peace is reached; or, in the 
case of internal conflicts, a peaceful settlement is achieved. Until that moment, interna- 
tional humanitarian law continues to apply in the whole territory of the warring States 
or, in the case of internal conflicts, the whole territory under the control of a party, 
whether or not actual combat takes place there. 31 

The question whether the US conflict with Al-Qaeda qualifies as an armed con- 
flict is not easily answered. The only time this conflict could have qualified as an in- 
ternational armed conflict would have been when the United States invaded 
Afghanistan in 2001 and then only to the extent that Al-Qaeda forces were inte- 
grated into the Taliban forces, the de facto army of Afghanistan. At present, as 
noted previously, both the Taliban and Al-Qaeda are fighting as insurgents in Af- 
ghanistan, and it is arguable that the conflict there now is an internal armed con- 
flict. The conflict in Afghanistan may even be within the scope of Additional 
Protocol II because arguably the Taliban and Al-Qaeda exercise such control over 
parts of southern Afghanistan as to enable them "to carry out sustained and con- 
certed military operations." These operations, the argument would continue, con- 
stitute "protracted" internal armed violence rather than just "isolated and 
sporadic" armed violence. 

Assuming arguendo the validity of these arguments, they do not pertain outside 
of Afghanistan, and Al-Qaeda violence in other places would not seem to fall 
within the scope of Additional Protocol II. It must be noted, however, that the 

19 



Mission Impossible? International Law and the Changing Character of War 

United States is not a party to Additional Protocol II, and it is debatable whether 
the Protocol's definition of an internal armed conflict is part of customary interna- 
tional law. Alternatively, some commentators have argued that the law of armed 
conflict, or international humanitarian law, is a "living" body of doctrine that aims 
to protect people to the maximum extent possible and thus should be interpreted 
in a way that fills gaps. They point to the Appeals Chamber decision in the Tadic 
case to support the proposition that for purposes of Common Article 3, "armed 
conflict" should be broadly interpreted to cover as many people as possible. 32 

Even if the conflict between the United States and Al-Qaeda and other militant 
or terrorist groups is not an "armed conflict" within the meaning of the law of 
armed conflict, it does not necessarily follow that the drone attacks in Pakistan vio- 
late international law. As discussed at some length in Professor Pedrozo's article, 
the drone attacks in Pakistan are compatible with the United Nations Charter, spe- 
cifically Article 2(4) and Article 51, as an exercise of the right of self-defense. 33 For 
my purposes, I will comment on only one aspect of the debate over self-defense: Article 
51's requirement that the use of armed force be in response to an armed attack. 34 

The proper interpretation and application of Article 51 have been the subject of 
much debate. 35 One of the most hotly debated issues has been whether Article 51 
simply preserves the right of self-defense as it existed under customary interna- 
tional law prior to adoption of the Charter or places further limits on that right. 
Prior to the adoption of the Charter, the test most cited by the commentators for 
judging whether the use of force was justified as an act of self-defense was that of 
US Secretary of State Daniel Webster in the Caroline case, i.e., whether the "neces- 
sity of that self-defense is instant, overwhelming, and leaving no choice of means, 
and no moment for deliberation." 36 

The words "if an armed attack occurs" have raised the issue as to whether 
Article 51 has limited the scope of the self-defense doctrine. Some have argued that 
the words should be read narrowly so as to eliminate the possibility of anticipatory 
self-defense that other commentators have argued is available under the Caroline 
criteria. 37 There is no need to try to resolve this debate for present purposes, be- 
cause there is no doubt that US and coalition forces have been subject to numerous 
and continuous armed attacks by Al-Qaeda and Taliban forces based in the FATA 
and that the use of armed force in the form of drones is necessary to try to prevent 
the continuation of such attacks. Moreover, as President Obama has recognized, 
the United States "cannot tolerate a safe-haven for terrorists whose location is 
known, and whose intentions are clear," 38 because it is difficult, if not impossible, 
to win a conflict against insurgents if they are able to retreat to a safe haven in 
another country. 



20 



John F. Murphy 



In sum, then, it appears that the claim that the CIA use of drones in Afghanistan 
and Pakistan is incompatible with international law is not well-founded. But 
merely having the better legal case in this argument may constitute a pyrrhic vic- 
tory if the use of drones results in Al-Qaeda and the Taliban gaining more popular 
support in Afghanistan and Pakistan and increased recruits for their forces. 

In his article Professor Pedrozo denies that the use of drones has resulted in 
more popular support for Al-Qaeda and the Taliban or has in any way assisted Al- 
Qaeda recruitment efforts. To support his contention, Pedrozo points out that the 
arguments of opponents are based on exaggerated civilian casualty figures and use- 
fully notes the results of various independent studies indicating, inter alia, that 
drone strikes have effectively impaired Al-Qaeda operations and have not aided Al- 
Qaeda recruitment efforts. 39 

Although the results of these studies are encouraging, I am not entirely con- 
vinced that they demonstrate the ineffectiveness of Al-Qaeda and Taliban propa- 
ganda. For example, although they demonstrate that civilian casualty figures are 
exaggerated, it is not clear that this message is effectively bought home to either the 
Afghan or Pakistani government or, more important, the large coterie of young 
Muslim men who are the primary target of Al-Qaeda and Taliban propaganda. 

General Stanley A. McChrystal, who was in charge of US forces in Afghanistan 
until he was removed by President Obama in June 2010 because of unacceptable 
remarks made about the President's national security team to a journalist writing 
for Rolling Stone magazine, responded to pressure from the Karzai government 
and human rights advocates who claimed that US drone and other armed attacks 
were resulting in unacceptable numbers of Afghan civilian deaths by issuing a di- 
rective that placed significant restrictions on US troops attacking people suspected 
of being militants or destroying buildings used to harbor insurgents. Troops widely 
complained that the restrictions exposed them to excess risk by limiting their right 
to use force in self-defense. When General David H. Petraeus, who was appointed 
to replace McChrystal, took over command of American and NATO forces on July 
4, 2010, he was faced with a difficult choice. On the one hand, he was sensitive to 
the need of his troops to protect themselves. On the other, the restrictions were re- 
portedly popular with Afghan officials and human rights advocates who claimed 
that the restrictions had led to a significant reduction in Afghan civilian deaths. 40 
At this writing Petraeus is reportedly ready to issue a new tactical directive that will 
expand restrictions on artillery strikes and aerial bombardment but clarify that 
troops have the right to self-defense. His goal will reportedly be to "persuade the 
troops that the unpopular rules will pay off in trust won on the ground." 41 

On August 1, 2010, Petraeus distributed counterinsurgency guidelines to 
troops. Reportedly, a large part of these guidelines, written by General Petraeus, is 

21 



Mission Impossible? International Law and the Changing Character of War 

aimed at the information side of the war. For example, he writes, "Be first with the 
truth. Beat the insurgents and malign actors to the headlines." "Avoid premature 
declarations of success." "Strive to underpromise and overdeliver." When things 
go wrong, he says, tell the truth: "Avoid spinning, and don't try to 'dress up' an ugly 
situation. Acknowledge setbacks and failures, including civilian casualties, and 
then state how we'll respond and what we've learned." "Live our values," he writes. 
"This is what distinguishes us from our enemies." 42 

As was the case when he was in command of US and coalition forces in Iraq, 
General Petraeus has long understood that there is no purely military solution to 
the conflict in Afghanistan, and that success on the information side is crucial to a 
political resolution. One hopes that this does not prove to be a mission impossible 
in Afghanistan. 43 

Before turning away from drones to other examples of unmanned systems and 
unmanned vehicles, it should be noted that on August 3, 2010, the American Civil 
Liberties Union and the Center for Constitutional Rights filed a suit in a US district 
court seeking declaratory and injunctive relief against alleged improper US gov- 
ernmental interference with the right of legal representation. 44 According to the 
complaint, the plaintiffs were retained by Nasser Al-Aulaqi to provide legal repre- 
sentation in connection with the government's reported decision to add his son, 
US citizen Anwar Al-Aulaqi, to its list of suspected terrorists approved for targeted 
killings. Regulations of the Office of Foreign Assets Control (OFAC) make it illegal 
for attorneys to provide legal services to any individual whose assets have been 
blocked on the basis of his being a terrorist without a license from OFAC. In the 
absence of such a license it would be a criminal offense under OFAC regulations for 
the plaintiffs to file a lawsuit on Anwar Al-Aulaqi's father's behalf seeking to pro- 
tect the constitutional rights of his US citizen son. 

On July 23, 2010, the plaintiffs submitted to OFAC an application to provide 
"uncompensated legal representation to Nasser al-Aulaqi as representative of the 
interests of his son, Anwar al-Aulaqi, who remains in hiding" in Yemen. 45 OFAC 
refused to grant the requested license. The plaintiffs contend, among other things, 
that they have a First Amendment right to represent clients in litigation consistent 
with their organizational missions. 

Elsewhere in their complaint the plaintiffs make it clear that they wish to "repre- 
sent Nasser al-Aulaqi in connection with the government's reported decision to 
add his son to its list of suspected terrorists approved for targeted killings" 46 and 
plan to file a lawsuit to block the government's plan. 

On August 30, 2010, the American Civil Liberties Union and the Center for 
Constitutional Rights filed a lawsuit in the United States District Court for the Dis- 
trict of Columbia on behalf of Nasser Al-Aulaqi, on his own behalf, and as "Next 

22 



John F. Murphy 



Friend" of his son Anwar Al-Aulaqi seeking declaratory and injunctive relief 
against the US government. 47 In particular, the plaintiff sought a declaration from 
the court that the US Constitution and international law prohibit the government 
from 

carrying out targeted killings outside of armed conflict except as a last resort to protect 
against concrete, specific and imminent threats of death or serious physical injury; and 
an injunction prohibiting the targeted killing of US citizen Anwar Al-Aulaqi outside 
this narrow context. Plaintiff also sought an injunction requiring the government to 
disclose the standards under which it determines whether US citizens can be targeted 
for death. 48 

The American Civil Liberties Union and the Center for Constitutional Rights were 
able to file this lawsuit on Mr. Al-Aulaqi' s behalf because the Treasury Depart- 
ment, reversing its earlier position, granted them a license to do so. The lawsuit 
challenging the Treasury's regulations is, at this writing, still pending. 49 

On December 7, 2010, the District Court for the District of Columbia dismissed 
Nasser Al-Aulaqi's suit in an eighty- three-page opinion on the ground of lack of 
jurisdiction. 50 The court ruled that the plaintiff did not have standing to bring the 
suit and that the political question doctrine barred the court from considering the 
merits of the plaintiffs suit. 

Other Unmanned Systems/Unmanned Vehicles: The Rise of Robotics 

Most, some would say too much, of the present focus on the changing character of 
weapon systems has been on drones. It is arguable that drones are the tip of the ice- 
berg and that in the not too distant future they will be replaced by new technologi- 
cal marvels created by the rising science of robotics. Because of the exponential 
growth of robots and their use in armed conflict, the line between science and sci- 
ence fiction has become ever more blurred. 

Although drones are unmanned aerial vehicles, or UAVs, it is noteworthy that 
they are controlled by human operators, many of them located in Nevada — or at 
least normally they are controlled. As noted previously, one of the documents re- 
leased by WikiLeaks reported that communications were lost with a Reaper drone, 
armed with Hellfire missiles and 500-pound bombs, in Afghanistan and it was nec- 
essary to order an F-15 fighter aircraft to shoot it down to prevent it from crossing 
into Tajikistan. 51 There are other examples of military technology running amok. 

For example, in his groundbreaking book, Wired for War, P.W. Singer describes 
the following incident: 



23 



Mission Impossible? International Law and the Changing Character of War 

Just before nine in the morning on October 12, 2007, the 10th Anti-Aircraft Regiment 
began its role in the South African military's annual Seboka training exercise. The op- 
eration involved some five-thousand troops from seventeen other units, so the pres- 
sure was on to get everything right. But the unit's automated MK5 antiaircraft system, 
sporting two 35 mm cannons linked up to a computer, appeared to jam. As a follow-up 
report recounts, this apparently "caused a 'runaway.'" The description of what hap- 
pened next is chilling. "There was nowhere to hide. The rogue gun began firing wildly, 
spraying high-explosive shells at a rate of 550 a minute, swinging around through 360 
degrees like a high-pressure hose." 

The young female officer in charge rushed forward to try to shut down the robotic gun, 
but, continues the report, "she couldn't, because the computer gremlin had taken 
over." The automated gun shot her and she collapsed to the ground. The gun's auto- 
loading magazines held five hundred high-explosive rounds. By the time they were 
emptied, nine soldiers were dead (including the officer) and fourteen seriously injured, 
all because of what was later called a "software glitch." 52 

As Singer's tour de force makes clear, robots are now operating in the air, on 
land, and in and under the sea. An early, and crucially important, use of robots on 
land was as part of an explosive ordnance disposal (EOD) team that was responsi- 
ble for disarming and disposing of IEDs. The robots involved in this exercise are 
called PackBots. They have proven to be very efficient at their jobs, and as a team's 
commander quoted by Singer reportedly put it, "when a robot dies, you don't have 
to write a letter to his mother." 53 

The use of robots has increased exponentially. For example, in Iraq in 2003, 
when the US and coalition forces invaded, there were no robotic units on the 
ground. By the end of 2005, they numbered 2,400, and by 2008, they were esti- 
mated to reach 1 2,000. 54 Initially, they were used for non-killing purposes, such as 
disabling or destroying IEDs or for surveillance, but increasingly, like the aerial 
drones, they have been used to kill enemies and destroy enemy property. 

For example, the TALON is a robot used in Iraq as part of an EOD team. But its 
manufacturer, Foster-Miller Inc., remodeled the TALON into a "killer app," the 
Special Weapons Observation Reconnaissance Detection System, or SWORDS. 
The new design allows soldiers to mount various weapons on the robot, including 
"an M- 16 rifle, a machine gun, and a grenade or rocket launcher." Another example 
is the MARCBOT (Multi-Function Agile Remote-Controlled Robot). According 
to Singer: 

One of the smallest but most commonly used robots in Iraq, the MARCBOT looks like 
a toy truck with a video camera mounted on a tiny, antenna-like mast. Costing only 
$5,000, this miniscule bot is used to scout for enemies and to search under cars for 



24 



John F. Murphy 



hidden explosives. The MARCBOT isn't just notable for its small size; it was the first 
ground robot to draw blood in Iraq. One unit of U.S. soldiers jury-rigged their 
MARCBOTs to carry Claymore anti-personnel mines. If they thought an insurgent was 
hiding in an alley, they would send a MARCBOT down first and, if they found some- 
one waiting in ambush, take him out with the Claymore. 55 

As Singer makes exhaustively clear, there are numerous kinds of military robots in 
use, including those with the capacity to kill, on land, in the air, and on or under the 
sea. 56 It is clear, moreover, that their numbers will continue to increase. As Singer 
notes, 

[a]t a congressional hearing on February 8, 2000, it finally all came together for military 
robotics on the "demand" side. Senator John Warner from Virginia, the powerful 
chairman of the Senate Armed Services Committee, laid down a gauntlet, mandating 
into the Pentagon's budget that by 2010, one-third of all the aircraft designed to attack 
behind enemy lines be unmanned, and that by 2015, one-third of all ground combat 
vehicles be driverless. 57 

After the Al-Qaeda terrorist attack on September 11, 2001, according to Singer, one 
robotics executive was told by his Pentagon buyers that his company should "make 
'em [robots] as fast as you can." 58 

For purposes of legal analysis of the legal issues these robots currently or might 
in the future raise, Darren Stewart has usefully broken them down into two catego- 
ries: automated and autonomous. 59 "Automated" has been defined thus: "[a] soci- 
ety is automated when its production is dominated by machines to the extent that 
machines are given priority over men in the performance of human tasks." 60 This 
clearly is the situation envisaged by Senator Warner's mandate to the Pentagon of 
2000. "Autonomous" is defined as "self-governing, independent." 61 

The crucial difference between the two categories of robots would seem to be 
that the automated robots are, at least theoretically, fully under the control of a hu- 
man being, or to use the military term, there is a "human in the loop." By contrast, 
autonomous robots are independent of human control and, some would argue, 
because of artificial intelligence have become more intelligent, more capable than 
humans and, as a result, are better positioned to make crucial life-and-death deci- 
sions in war. 62 

The problem, as noted by Stewart, is that at present there are no autonomous 
weapon systems in use, with the exception of one South Korean system used in the 
demilitarized zone separating the two Koreas. 63 Hence, only the automated robots 
currently raise issues of the legality of their use. For their part, possible legal issues 
involving the use of autonomous robots are currently a matter of pure speculation. 



25 



Mission Impossible? International Law and the Changing Character of War 

By definition, automated robots have a human in the loop who has the ultimate 
responsibility for what the automated robot does. The human in the loop would 
therefore have the responsibility to ensure that in selecting its targets a military kill- 
ing robot adhered to the principles of the law of armed conflict, including military 
necessity, proportionality and distinction, and would suffer the consequences of a 
failure on the part of the robot to do so. It is important to note decisions to shoot 
cannot be delegated to a computer. 

Perhaps the most tragic example of a failure to rely on human judgment, rather 
than that of a computer, was the July 3, 1988 incident involving a patrol mission of 
the USS Vincennes in the Persian Gulf. On that day the radar system of the 
Vincennes, called Aegis, spotted Iran Air Flight 655, an Airbus passenger jet, flying 
on a consistent course and speed and broadcasting a radar and radio signal that 
showed it to be a civilian aircraft. The automated radar system of the Vincennes, 
however, had been designed for use against attacking Soviet bombers in the open 
ocean of the North Atlantic, not for dealing with skies crowded with civilian air- 
craft like those over the Gulf. The computer system assigned the plane an icon that 
on the screen made it appear to be an Iranian F-14 fighter. Singer recounts the 
tragic denouement of this incident: 

Though the hard data were telling the human crew that the plane wasn't a fighter jet, 
they trusted the computer more. Aegis was in semi-automatic mode, giving it the least 
amount of autonomy, but not one of the 18 sailors and officers in the command crew 
challenged the computer's wisdom. They authorized it to fire. (That they even had the 
authority to do so without seeking permission from more senior officers in the fleet, as 
their counterparts on any other ship would have had to do, was itself a product of the 
fact that the Navy had greater confidence in Aegis than in a human-crewed ship with- 
out it.) Only after the fact did the crew members realize that they had accidentally shot 
down an airliner, killing all 290 passengers and crew, including 66 children. 64 

As Yoram Dinstein notes, civilian airliners carrying civilian passengers are "sin- 
gled out for special protection." 65 He cites the Vincennes incident, however, as an 
example of the reality that "the speed of modern electronics often creates grave 
problems of erroneous identification." 66 Singer adds, quoting retired Army colonel 
Thomas Adams, that the coming weapons "will be too fast, too small, too numer- 
ous, and will create an environment too complex for humans to direct." 67 

If the "coming weapons" will be too complex for humans to direct, someone, or, 
more precisely perhaps, something, will have to take over the job. Here we enter 
into the murky world of artificial intelligence, or AI. And here also we move from 
automated robotics to autonomous robotics. 



26 



John R Murphy 



It is, however, debatable, to say the least, whether artificial intelligence will ever 
progress to the point where robots will be in a position to apply, on their own, such 
vital principles of armed conflict as military necessity, proportionality and distinc- 
tion. The argument against artificial intelligence ever progressing to this point is 
based, at least in part, on the reality that robots lack the moral sense that humans 
possess, the capacity to make an empathic response, and in general the ability to 
draw on their humanity. 

In his book, Singer quotes a senior military analyst at Human Rights Watch, a 
leading human rights non-governmental organization, to illustrate the problems 
that would be caused by the complete absence of a human element in the targeted 
killing environment: 

"You can't just download international law into a computer. The situations are com- 
plicated; it goes beyond black-and-white decisions." He explains how figuring out le- 
gitimate military targets is getting more difficult in war, especially as conflict actors 
increasingly fight in the midst of civilian areas like cities and even use civilians for 
cover. Citing examples he dealt with in his own career, he asks, if a tank is parked inside 
a schoolyard, is it legitimate to strike? How about if it is driving out of the village and a 
group of children catch a ride on top? 68 

There is also the tricky issue of accountability for war crimes. As Dinstein notes 
in his treatise, "War crimes, like all other international crimes, have two constitu- 
ent elements: (a) the criminal act {acteus reus) and (b) a criminal intent or at least a 
criminal consciousness (mens red).'" 69 But a robot has no capacity for either a crim- 
inal intent or a criminal consciousness. Moreover, as a practical matter, it would 
make no sense to apply criminal penalties to robots. Accordingly, even if the day 
may come when it will be possible to have fully autonomous robots, it will still be 
necessary to have a human in the loop, at least in a position of command responsi- 
bility. In other words, the robots would not be totally autonomous but subject to 
the commands of a human commander. As Dinstein has instructed: 

A commander bears criminal responsibility not only for orders that he issues to his 
subordinates to commit war crimes. He is answerable for his acts of omission as much 
as for his acts of commission. These acts of omission relate to failure of proper supervi- 
sion and control by a commander, designed to ensure that his subordinates do not per- 
petrate war crimes on their own initiative. Of course, the same commander may be 
individually accountable twice: once for having given orders to his subordinates to 
commit certain war crimes, and additionally for knowingly allowing them to commit 
other war crimes which go beyond those orders. 70 



27 



Mission Impossible? International Law and the Changing Character of War 

To be sure, a commander would not be responsible for a robot deciding on its 
own to commit a violation of the law of armed conflict, unless he or she was aware 
that such violations were taking place and was in a position to take steps to exercise 
the necessary effective command and control to prevent or at least bring to a halt 
such violations. If the robot's actions were caused by a design defect, the remedy 
might be a civil action in tort against the manufacturer of the robot or perhaps the 
software engineer involved in the manufacturing process rather than a criminal 
proceeding. 71 

II. Challenges Posed by the Use of Force in Cyberspace 

One challenge posed by the use of force in cyberspace may be similar to a primary 
issue arising out of the so-called war on terror: what is the appropriate legal regime 
to apply, criminal law and procedure or the law of armed conflict? 72 In an essay, 
"Computer Network Attacks by Terrorists: Some Legal Dimensions," published in 
2002, 1 suggested that "the applicable legal regime becomes international criminal 
law rather than provisions of the UN Charter governing the use of force and the 
maintenance of international peace and security." 73 My conclusion at that time, 
however, was premised on the assumption that the use of force in cyberspace did 
not involve State sponsorship of the terrorist attack or any other kind of State in- 
volvement in the attack. Recent developments call into question the validity of this 
assumption. 

To be sure, another conclusion I reached in my 2002 essay remains true today: 
the majority of computer network attacks "may cause disruption of vital systems 
leading to widespread inconvenience, possibly to some degree of public alarm, but 
... do not directly threaten life." 74 But recent computer network attacks have been 
very disruptive indeed. For example, Google, the world's largest Internet search en- 
gine, announced in January 2010 that it had been targeted by hackers in 2009, and 
that the attacks resulted in breaches of its security infrastructure and theft of 
Google's intellectual property and other data. 75 What made this attack especially 
disturbing for the US government was that Google traced the attacks to hackers op- 
erating out of China. 76 Many have insinuated that the Chinese government partici- 
pated in the attacks, especially because the attacks included the hacking of e-mail 
accounts belonging to Tibetan human rights activists and journalists, 77 but there is 
no conclusive evidence of the Chinese government's involvement in the attacks. 

China is not the only traditional economic and military adversary of the United 
States that has been linked to cyber attacks in recent years. Hackers located in Rus- 
sia carried out an attack on several of Estonia's government websites in 2007, 
prompting many to conclude that the Russian government was either formally or 

28 



John F. Murphy 



informally behind the attacks. 78 The attacks came in successive waves, first com- 
promising the Estonian government sites, then infiltrating newspapers, television 
stations, schools and banks within the country. 79 The Russian government denied 
any involvement in the cyber disruptions, but the timing was very suspicious be- 
cause the attacks occurred the same day that Estonia removed a Soviet- era war 
monument from the center of its capital city, Tallinn, a controversial move that 
was preceded by months of diplomatic tensions between the two countries and 
caused protestors in Moscow to stage several protests. 80 The Russian government 
was again implicated in computer attacks in 2008 when Georgia's Internet infra- 
structure was barraged with "denial of service" attacks that crippled many of its 
main governmental websites. 81 As the timing of the cyber attacks coincided exactly 
with Russia's military incursion into Georgia, the Georgia government accused 
Russia of carrying out the cyber attacks in coordination with its physical military 
operations. 82 

In addition to US businesses, vital US national defense agencies have been at- 
tacked in recent years. 83 For example, the Department of Defense was the target of 
computer network attacks in 1998, 2003 and 2007, when classified information 
was stolen. 84 The perpetrators of these attacks were deemed "unknown foreign in- 
truders," but many commentators suggested the presence of Chinese or Russian 
footprints, especially since these types of attacks on US national defense systems 
are thought to be possible only through foreign State participation. 85 

It is, however, difficult to respond to cyber attacks when it is uncertain who or 
what has engaged in the attack. Hence, the current emphasis appears to be on bol- 
stering US cyber security and protecting US infrastructure from intrusions from 
criminal hackers, State actors and terrorists. For example, President Barack 
Obama is continuing to implement the Comprehensive National Cybersecurity 
Initiative that was created by the George W. Bush administration. 86 This program 
is intended to unify the efforts of various government agencies to protect 
commercial and governmental cyber security, and increase our preparedness for 
potential attacks. Goals for this initiative include building an international frame- 
work to address computer network attacks and the creation of an identity man- 
agement strategy that would balance the privacy and security interests of 
individual Internet users. 

Despite these efforts, current evidence indicates that the United States is not up 
to the task of preventing or mitigating the damage of a large-scale computer net- 
work attack. In early 2010 the Pentagon conducted a simulated computer attack 
aimed at paralyzing the country's power grids, communications systems and fi- 
nancial networks to see how the government might respond; the results were not 
encouraging. 87 According to military officers who participated in the simulation, 

29 



Mission Impossible? International Law and the Changing Character of War 

the "enemy had all the advantages: stealth, anonymity and unpredictability." 88 No 
one could pinpoint which country the attack originated from, thus eliminating the 
possibility of any retaliatory action, and the legal authorization to respond to the 
attack was unclear because no one could determine "if the attack was an act of van- 
dalism, an attempt at commercial theft, or a State-sponsored effort to cripple the 
United States, perhaps as a prelude to a conventional war." 89 

If, and this is a big if, it proves possible to prove that the cyber attack was State- 
sponsored, the issue of whether it constituted an "armed attack" within the mean- 
ing of Article 51 of the UN Charter may arise and, even if it amounts to an armed 
attack, the kind of response that would meet the criteria of necessity and propor- 
tionality could be difficult to determine. Presumably, if the attack resulted in 
bringing down power stations, refineries, banks and air traffic control systems with 
resultant loss of life and property, this would constitute an armed attack, but ab- 
sent such destructive effect, the case is less clear. In his article in this volume, Mi- 
chael Schmitt has pointed out that in the cyber attack on Georgia there was no loss 
of life or property. 90 

As the Economist has recently noted, "there are few, if any, rules in cyberspace of 
the kind that govern behavior, even warfare, in other domains." 91 To remedy this 
lacuna, the Economist suggests that States start talking about arms control on the 
Internet. Talks have already begun, but it is not clear how successful they will be. In 
another forum I have tried to identify some of the dimensions of the problem: 

In the introduction to this study, it is suggested that the rapidity of change in modern 
life creates great instability and even chaos in some situations. The rapidity of change is 
particularly pronounced in the technological and scientific arenas whose considerable 
complexity makes it difficult for the slow-moving treaty process to adapt. A recent ex- 
ample of this problem is the dispute between the United States and Russia over how to 
counter cyberwar attacks that could wreak havoc on computer systems and the 
Internet. Russia favors an international treaty along the lines of those negotiated for 
chemical weapons and has pushed hard for that approach. The United States, however, 
argues that a treaty is unnecessary and instead advocates improved cooperation among 
international law enforcement groups. In the U.S. view, if these groups cooperate to 
make cyberspace more secure against criminal intrusions, this will also make 
cyberspace more secure against military campaigns. Trying to reach common ground 
over an approach is complicated, given that a significant proportion of the attacks 
against American targets are coming from China and Russia. Also, Russian calls for 
broader international oversight of the Internet have met strong U.S. resistance to 
agreements that would allow governments to censor the Internet because they would 
provide cover for totalitarian regimes. The United States argues further that a treaty 
would be ineffective because it can be impossible to determine if an Internet attack 
originated from a government, a hacker loyal to that government, or a rogue acting 
independently. The unique challenge of cyberspace is that governments can carry out 

30 



John F. Murphy 



deceptive attacks to which they cannot be linked. After computer attacks in Estonia in 
April 2007 and in the nation of Georgia in August 2008, the Russian government de- 
nied involvement and independent observers said the attacks could have been carried 
out by nationalist sympathizers or by criminal gangs. Although the United States and 
Russia have failed to reach agreement on the proper approach to counter cyberwar at- 
tacks, arms control experts say that major governments are reaching a point of no re- 
turn in heading off a cyberwar arms race. 92 

The United States and Russia have been talking about the possibility of entering 
into a bilateral agreement. Even if they are able to overcome the obstacles to reach- 
ing agreement between them, it is highly unlikely it would prove possible to con- 
clude a global agreement. This is because since the early 1990s it has proven almost 
impossible to get agreement among the now almost two hundred member States of 
the world community on global treaties to deal with the severest problems facing 
humanity, such as climate change, nuclear proliferation, terrorism, pandemics, 
trade protectionism and many more. 93 Perhaps reflecting an awareness of this dif- 
ficulty, the Economist has suggested "more modest accords, or even just informal 
'rules of the road' that would raise the political cost of cyber-attacks." Examples 
might include 

a deal to prevent the crude "denial-of-service" assaults that brought down Estonian 
and Georgian websites with a mass of bogus requests for information; NATO and the 
European Union could make it clear that attacks in cyberspace, as in the real world, will 
provoke a response; the UN or signatories of the Geneva Conventions could declare 
that cyber-attacks on civilian facilities are, like physical attacks with bomb and bullet, 
out of bounds in war 94 

Whether these or other more "modest" steps would be effective or lead to formal, 
"legal" arrangements to establish an arms control regime for cyberspace is 
debatable. 

Moreover, it is important to recognize that although terrorist groups such as 
Al-Qaeda are not thought to possess enough technological capability at present 
(without State support) to carry out a major cyber attack that would result in loss 
of life and property, it is envisioned that within the next decade they could pose 
such a threat. 95 Al-Qaeda and its ilk, of course, will not recognize the legitimacy of 
either modest, informal or formal legal arrangements to establish an arms control 
regime for cyberspace. They also will enjoy certain advantages because of the 
asymmetric nature of armed conflict in cyberspace. They will be able to launch a 
cyber attack from any place they may be located while disguising their location 
through various computer moves. Applying the principles of military necessity, 
proportionality and distinction against terrorist cyber attacks will be especially 

31 



Mission Impossible? International Law and the Changing Character of War 

challenging since the terrorists may be even more heavily embedded in the civilian 
population than usual when launching attacks. William J. Lynn III, US Deputy 
Secretary of Defense, recently pointed out some of the advantages enemies of the 
United States enjoy in asymmetric cyber warfare: 

The low cost of computing devices means that U.S. adversaries do not have to build ex- 
pensive weapons, such as stealth fighters or aircraft carriers, to pose a significant threat 
to U.S. military capabilities. A dozen determined computer programmers can, if they 
find a vulnerability to exploit, threaten the United States' global logistics network, steal 
its operational plans, blind its intelligence capabilities, or hinder its ability to deliver 
weapons on target. Knowing this, many militaries are developing offensive capabilities 
in cyberspace, and more than 100 foreign intelligence organizations are trying to break 
into U.S. networks. Some governments already have the capacity to disrupt elements of 
the U.S. information infrastructure. 

In cyberspace, the offense has the upper hand. The Internet was designed to be collabo- 
rative and rapidly expandable and to have low barriers to technological innovation; 
security and identity management were lower priorities. For these structural reasons, 
the U.S. government's ability to defend its networks always lags behind its adversaries' 
ability to exploit U.S. networks' weaknesses. Adept programmers will find vulnerabili- 
ties and overcome security measures put in place to prevent intrusions. In an offense- 
dominant environment, a fortress mentality will not work. The United States cannot 
retreat behind a Maginot Line of firewalls or it will risk being overrun. Cyberwarfare is 
like maneuver warfare, in that speed and agility matter most. To stay ahead of its pur- 
suers, the United States must constantly adjust and improve its defenses. 96 

Later in his essay Lynn notes that it will be necessary to adopt a new approach to 
deterrence, expresses doubts about the feasibility of traditional arms control regimes, 
and suggests the need for a new approach to international behavior in qi^erspace: 

Given these circumstances, deterrence will necessarily be based more on denying any 
benefit to attackers than on imposing costs through retaliation. The challenge is to 
make the defenses effective enough to deny an adversary the benefit of an attack despite 
the strength of offensive tools in cyberspace. (Traditional arms regimes w r ould likely 
fail to deter cyberattacks because of the challenges of attribution, which make verifica- 
tion of compliance almost impossible. If there are to be international norms of behav- 
ior in cyberspace, they may have to follow a different model, such as that of public 
health or law enforcement.) 97 

In short the legal and technological challenges the United States faces in re- 
sponding effectively to the asymmetric nature of cyber warfare are daunting, and 
success is not assured. Meeting these challenges is especially difficult when US 



32 



John R Murphy 



forces are forced to adopt a purely defensive posture. In traditional armed conflict, 
it is the offensive power of the US military that affords it such a marked advantage. 
As the various panels at the conference demonstrated, however, in asymmetric 
warfare the United States, more often than not, finds itself on the defensive. The 
next, and concluding, section of this article considers a few more dimensions of the 
asymmetry problem and the impact they have on the chances of US forces succeed- 
ing in their mission. 

III. The Multifaceted Nature of Asymmetric Warfare 

As Professor Wolff Heintschel von Heinegg points out, 98 one of a number of possi- 
ble definitions of asymmetric warfare is that it is warfare where one of the parties to 
the armed conflict tries to compensate for its perceived disadvantages vis-a-vis the 
other party or parties by adopting methods and strategies that are clear violations 
of the law of armed conflict, e.g., perfidy, suicide bombings and the use of human 
shields, especially civilians. What is particularly disturbing about asymmetric war- 
fare is that violators of the law of armed conflict gain considerable military advan- 
tage in many instances by the adoption of such tactics because they can be 
extremely effective in countering the normally vastly superior military capabilities 
of the other party. 

Both in Iraq and in Afghanistan the enemy consists of insurgents who embed 
themselves into the civilian populations, a clear violation of the law of armed con- 
flict. In Iraq a standard tactic of the insurgents was to use children as human shields 
in firefights with US and coalition forces. In Afghanistan, as noted earlier in this ar- 
ticle, there have been sharp factual disputes between NATO and local residents 
over whether NATO air raids have resulted in civilian deaths, as alleged by the local 
residents, or, as contended by NATO, in the deaths of insurgents who had opened 
fire on NATO forces before they were killed." Regardless of which side is correct in 
this debate, the result has been a substantial reduction in the number of airstrikes. 

General Charles Dunlap, a retired US Air Force judge advocate, regards the de- 
cision in Afghanistan to sharply reduce the number of airstrikes as a serious mis- 
take. He contends that "it is often overlooked that during the surge [in Iraq], 
thousands of insurgents were captured or killed by American special operation 
forces and airstrikes. I do believe, firmly, that the much-derided killing and captur- 
ing actually was the key to success." 100 In support of his argument Dunlap adds that 
during the Iraq surge, airstrikes increased to five times previous levels. 

US military officers in Afghanistan counter these arguments by claiming that 
special operations raids in 2010 resulted in the deaths of hundreds of militant 
leaders, while the restrictions on airpower saved Afghan lives and improved 

33 



Mission Impossible? International Law and the Changing Character of War 

relations with the government. Others argue that the Iraqis themselves were re- 
sponsible for the reduction of violence: Sunni insurgents who turned against Al- 
Qaeda, and Shiite militias who embraced a ceasefire with the Sunni. 101 For his 
part, James Dubik, a retired lieutenant general who oversaw the training of the 
Iraqi military during the surge, reportedly stated: "The decisiveness of the surge 
came from an aggregate of factors — more like a thunderstorm than a single cause 
and effect." 102 He believes that General Petraeus will look for the same aggregate 
effect in Afghanistan. 

In both Iraq and Afghanistan, however, as well as more generally in the world- 
wide conflict (no longer "war") with Al-Qaeda and affiliated terrorist groups, the 
struggle for "hearts and minds" or, if one prefers, the "propaganda war" is of cru- 
cial importance. And as indicated earlier in this article, it appears that the enemy 
has been able to counter the advantages that the United States and its allies would 
normally enjoy. Perhaps the most recent example of this is the apparent impact of 
the current debate in the United States over whether a mosque should be permit- 
ted to be built in the vicinity of where the Twin Towers were destroyed on 9/1 1. 
Some exceedingly inflammatory negative remarks about Islam made by some op- 
ponents of building the mosque in that vicinity have reportedly resulted in signifi- 
cant increases in the number of recruits for Al-Qaeda. The First Amendment 
protects such remarks, but unwittingly they constitute grist for Al-Qaeda's propa- 
ganda mill. 

At this writing, the papers are full of still another dispute between NATO and 
Afghan officials over the results of a NATO airstrike. 103 According to Afghan offi- 
cials, the airstrike hit the election convoy of an Afghan parliamentary candidate, 
wounding him and killing as many as ten campaign aides. But the NATO version is 
that the strike killed a senior militant leader. US Secretary of Defense Robert Gates, 
who was visiting Afghanistan at the time, reportedly stated that the airstrike tar- 
geted and killed a "very senior official" from the Islamic Movement of Uzbekistan, 
or IMU, a militant group the United States has designated as a terrorist organiza- 
tion. 104 NATO officials said that the airstrike killed and injured up to twelve insur- 
gents after NATO forces identified several armed men in a sedan that was part of a 
six-car convoy. Only the sedan was hit, they said. 

There seems to be no current mechanism in Afghanistan for resolving these dis- 
putes over the results of NATO airstrikes. But there also seems to be little doubt 
that, regardless of their veracity, frequent reports of attacks resulting in civilian 
casualties are undermining the counterinsurgency effort, which is aimed at pro- 
tecting the population and shoring up support for the Afghan government. 

Two other factors loom large when one is considering the problem of civilian 
deaths arising from the armed conflict in Afghanistan. The first, as noted before, is 

34 



John F. Murphy 



the difficulty in distinguishing between combatants and civilians in asymmetric 
warfare. The second, it is important to note, is that the United Nations has re- 
ported that 70 percent of civilians who die in violence in Afghanistan are killed by 
insurgents. 105 

Yet it is always the United States and NATO who are on the defensive when 
claims of civilian casualties are raised. In his concluding remarks at the conference, 
Yoram Dinstein deplored this constantly defensive posture. As he pointed out, the 
enemy has successfully engaged in lawfare, the use and abuse of legal argument, to 
leave the impression that the law of armed conflict demands there be no civilian 
casualties. It does not, of course, and this reality should be aggressively brought 
home to the people of Afghanistan and elsewhere. It should also be brought home 
to them that the enemy constantly engages in lawless behavior and, as pointed out 
by the United Nations, consistently kills its own civilians in armed conflict. 
Dinstein's call for the United States and its allies to abandon their defensive posture 
and take the offense to demonstrate, stressing their own efforts to comply with the 
law of armed conflict, the lawlessness and brutality of Al-Qaeda, the Taliban and 
their ilk is compelling. 106 

The enemies in both Iraq and Afghanistan are insurgents, and the United States 
and its allies are involved in counterinsurgency in both countries. General Petraeus 
was in charge of the counterinsurgency in Iraq and has now assumed a similar role 
in Afghanistan. He was, moreover, the primary architect of the 2006 U.S. Army/ 
Marine Corps Counterinsurgency Field Manual 107 The Manual, regarded as the 
"bible" of counterinsurgency, raises the crucial issue of the time required for a 
well-run counterinsurgency strategy to work. Sara Sewall, a former Pentagon offi- 
cial who wrote the introduction to the University of Chicago edition of the manual, 
for one is skeptical that the US public will be willing to "supply greater concentra- 
tions of forces, accept higher casualties, fund serious nation-building and stay 
many long years to conduct counterinsurgency by the book." 108 In light of current 
developments, with the withdrawal of all US combat troops from Iraq — amid indi- 
cations that the Iraqi army and police may not be able to provide adequate security 
on their own 109 — and a plan to start withdrawing combat troops from Afghanistan 
in the summer of 201 1, Sewall's skepticism would appear well justified. 

Notes 

1. See Raul A. "Pete" Pedrozo, Use of Unmanned Systems to Combat Terrorism, which is 
Chapter IX in this volume, at 217, 218-19. 

2. See Mary Ellen O'Connell, Unlawful Killing with Combat Drones: A Case Study of Paki- 
stan, 2004-200% at 8 (Notre Dame Law School Legal Studies Research Paper No. 09-43, 2010), 
available at http://ssrn.com/abstract= 1501 144. 

35 



Mission Impossible? International Law and the Changing Character of War 

3. Id. 

4. See Pedrozo, supra note 1, at 240. 

5. See Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execu- 
tions, Study on Targeted Killings, Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6 (May 
28, 2010) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/hrcouncil/ 
docs/ 14session/A.HRC. 14.24.Add6.pdf [hereinafter Study on Targeted Killings]. 

6. For discussion of the distinction between war criminals and unlawful combatants, see 
YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED 
CONFLICT 266-70 (2d ed. 2010). 

7. See Study on Targeted Killing, supra note 5, If 72. 

8. I am indebted to Professor Michael N. Schmitt of Durham University Law School in the 
United Kingdom for this observation. 

9. Id 

10. Article 43(2) of Additional Protocol I provides: "Members of the armed forces of a Party 
to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Con- 
vention) are combatants, that is to say, they have the right to participate directly in hostilities." 
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec- 
tion of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3. 

1 1 . See Matthew Green, Chilling view of conflict exposed, FINANCIAL TIMES, July 27, 20 10, at 2. 

12. Id. 

13. Richard A. Oppel Jr. & Taimoor Shah, Afghans Say Attack Killed 52 Civilians; NA TO Dif- 
fers, New York Times, July 27, 2010, at A4. 

14. John F. Murphy, Afghanistan, Hard Choices and the Future of International Law, 39 
Israel Yearbook on Human Rights 69, 91-92 (2009). 

1 5. Green, supra note 1 1 . 

16. In response to reports that a NATO attack on July 23, 2010 allegedly killed fifty- two civil- 
ians, President Hamid Karzai reportedly condemned the attack as "both morally and humanly 
unacceptable," and the Afghan government issued a statement saying "success over terrorism 
does not come with fighting in Afghan villages, but by targeting its sanctuaries and financial and 
ideological sources across the borders." Oppel & Shah, supra note 13. 

17. Program on Humanitarian Policy and Conflict Research, Manual on 

INTERNATIONAL LAWS APPLICABLE TO AIR AND MISSILE WARFARE (2009), available at http:// 
ihlresearch.org/amw/HPCR%20Manual.pdf. 

18. I am indebted to Professor Schmitt for bringing this argument to my attention. 

19. DINSTEIN, supra note 6, at xiii & 26. 

20. Id. at 26. 

21. Mat 27. 

22. Id. 

23. Hamdan v. Rumsfeld, 548 U.S. 557, 630-31 (2006). 

24. DINSTEIN, supra note 6, at 56. 

25. Michael N. Schmitt, The United States Supreme Court and Detainees in the War on Terror, 
37 Israel Yearbook on Human Rights 33, 68 (2007). 

26. see david luban, julie r. o'sullivan & david p. stewart, international and 
Transnational Criminal Law 1060, 1063 n.2 (2010). 

27. Schmitt, supra note 25, at 69. 

28. Id. at 67 n. 134. 



36 



John F. Murphy 



29. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to 
the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 
609. 

30. Prosecutor v. Tadic, Case No. IT-94- 1 -AR72, Interlocutory Appeal on Jurisdiction (Int'l 
Crim. Trib. for the Former Yugoslavia Oct. 2, 1995). 

31. Jtf.,170. 

32. Id., 1167, 70. 

33. See Pedrozo, supra note 1, at 219-27. 

34. Article 51 of the UN Charter provides in pertinent part: "Nothing in the present Charter 
shall impair the inherent right of individual or collective self-defense if an armed attack occurs 
against a Member of the United Nations, until the Security Council has taken measures necessary 
to maintain international peace and security." 

35. For discussion of some of these issues, see John F. Murphy, Force and Arms, in 1 UNITED 
NATIONS LEGAL ORDER 247, 257-70 (Oscar Schachter & Christopher C. Joyner eds., 1995). 

36. Quoted in J. MOORE, DIGEST OF INTERNATIONAL LAW 412 (1906). 

37. It is noteworthy that Yoram Dinstein is of the view that "reliance on that [Caroline] inci- 
dent is misplaced." YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE 184 (4th ed. 
2005). Among the reasons given to support this view is that "[tjhere was nothing anticipatory 
about the British action against the Caroline steamboat on US soil, inasmuch as use of the Caro- 
line for transporting men and materials across the Niagara River — in support of an anti-British 
rebellion in Canada — had already been in progress." Id. at 184-85. 

38. Quoted in Pedrozo, supra note 1, at 242. 

39. Id. 246-48. 

40. See Richard A. Oppel Jr. & Rod Nordland, Petraeus to Expand Efforts to Protect Afghan 
Civilians, NEW YORK TIMES, Aug. 4, 2010, at A 10. 

41. Id. 

42. Id. 

43. On August 4, 2010, the New York Times reported that Pakistan's President, Asif Ali 
Zardari, was quoted in Le Monde, a leading French newspaper, as saying that coalition forces 
were losing the war in Afghanistan because they had "lost the battle to win hearts and minds" of 
Afghans, and that the Taliban's success lay "in knowing how to wait" for NATO forces to with- 
draw. See John F. Burns, Afghan War Is Being Lost, Pakistani President Says, NEW YORK TIMES, 
Aug. 4, 2010, at A8. 

44. American Civil Liberties Union, American Civil Liberties Union Foundation, and Cen- 
ter for Constitutional Rights v. Timothy F. Geithner, Secretary of the Treasury and Adam J. 
Szubin, Director of the Office of Foreign Asset Control, Complaint for Declaratory and Injunc- 
tive Relief, United States District Court for the District of Columbia, Aug. 3, 2010, available at 
http://www.aclu.org/files/assets/2-OFACComplaintFinal.pdf. 

45. Mat 3. 

46. Mat 9. 

47. Nasser Al-Aulaqi v. Barack H. Obama, Leon C. Panetta, and Robert M. Gates, Complaint 
for Declaratory and Injunctive Relief, No. 10-cv-01469 (D.D.C. Aug. 30, 2010), available at 
http://www.aclu.org/national-security/al-aulaqi-v-obama-complaint. 

48. Id., ^6. 

49. See Scott Shane, Rights Groups Sue U.S. on Effort to Kill Cleric, NEW YORK TIMES, Aug. 3 1 , 
2010, at A6. 

50. Nasser Al-Aulaqi v. Barack H. Obama, Robert M. Gates, and Leon E. Panetta, 727 F. 
Supp.2dl (2010). 



37 



Mission Impossible? International Law and the Changing Character of War 

51. See supra text accompanying note 1 1. 

52. P.W. SINGER, WIRED FOR WAR 196 (2009). 

53. P.W. Singer, Robots at War: The New Battlefield, WILSON QUARTERLY, Winter 2009, at 
30, available at http://www.wilsonquarterly.com/article.cfm?aid=1313. 

54. Id. 

55. Id. 

56. See SINGER, supra note 52. Between pages 308 and 309, Singer has inserted pictures of, 
and commentary on, a great variety of robots in many different situations. See also Singer, supra 
note 53, for extensive commentary on the different kinds of robots. 

57. SINGER, supra note 52, at 59. 

58. Id. 

59. See Darren M. Stewart, New Technology and the Law of Armed Conflict, which is Chapter 
X in this volume, at 271, 273-84 

60. See OXFORD ENGLISH DICTIONARY 320-21 (2d ed. 1989), quoting the November 1962 
Catholic Gazette. 

61. Id. 

62. See generally Singer, supra note 53, who quotes various military officers and defense 
officials. 

63. See Stewart, supra note 59, at 28 1 . 

64. Singer, supra note 53. 

65. See DlNSTEIN, supra note 6, at 117, citing H.B. Robertson, The Status of Civil Aircraft in 
Armed Conflict, 27 ISRAEL YEARBOOK ON HUMAN RIGHTS 1 13, 126 (1997). 

66. Id. 

67. Singer, supra note 53. 

68. SINGER, supra note 52, at 389, quoting Marc Garlasco of Human Rights Watch. 

69. DlNSTEIN, supra note 6, at 279. 

70. Id. at 271. As Dinstein notes, id. at 276, the most recent international instrument dealing 
with command responsibility is the Rome Statute of the International Criminal Court, which 
provides in Article 28: 

In addition to other grounds of criminal responsibility under this Statute for crimes 
within the jurisdiction of the Court: 

1 . A military commander or person effectively acting as a military commander shall 
be criminally responsible for crimes within the jurisdiction of the Court committed by 
forces under his or her effective command and control, or effective authority and con- 
trol as the case may be, as a result of his or her failure to exercise control properly over 
such forces, where: 

(a) That military commander or person either knew or, owing to the circum- 
stances at the time, should have known that the forces were committing or about to 
commit such crimes; and 

(b) That military commander or person failed to take all necessary and reasonable 
measures within his or her power to prevent or repress their commission or to sub- 
mit the matter to the competent authorities for investigation and prosecution. 

2. With respect to superior and subordinate relationships not described in paragraph 1 , 
a superior shall be criminally responsible for crimes within the jurisdiction of the Court 
committed by subordinates under his or her effective authority and control, as a result 
of his or her failure to exercise control properly over such subordinates where: 



38 






John F. Murphy 



(a) The superior either knew, or consciously disregarded information which 
clearly indicated, that the subordinates were committing or about to commit such 
crimes; 

(b) The crimes concerned activities that were within the effective responsibility 
and control of the superior; and 

(c) The superior failed to take all necessary and reasonable measures within his or 
her power to prevent or repress their commission or to submit the matter to the 
competent authorities for investigation and prosecution. 

Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90. 

71. See, on this point, SINGER, supra note 52, at 389. 

72. For consideration of this issue as it applies to the "new terrorism," see John F. Murphy, 
Challenges of the "New Terrorism," in ROUTLEDGE HANDBOOK OF INTERNATIONAL LAW 281, 
284 (David Armstrong ed., 2009). 

73. John F. Murphy, Computer Network Attacks by Terrorists: Some Legal Dimensions, in 
Computer Network Attack and International Law 323, 327 (Michael N. Schmitt & 
Brian T. O'Donnell eds., 2002) (Vol. 76, US Naval War College International Law Studies). 

74. Id. 

75. See John Markoff, Google Asks Spy Agency for Help with Inquiry into Cyberattacks, NEW 
YORK TIMES, Feb. 4, 2010, at A6. 

76. See Miguel Helft & John Markoff, In Rebuke of China, Focus Falls on Cyber Security, NEW 
YORK TIMES, Jan. 13, 2010, at Al. 

77. Id. 

78. See Steven Lee Myers, 'Estonia' Accuses Russia of Computer Attacks, NYTlMES.COM 
(May 17, 2007), http://www.nytimes.com/2007/05/18/world/europe/18cnd-russia.html. 

79. Id. 

80. Id. 

81. See John Markoff, Before the Gunfire, Cyberattacks, NYTlMES.COM (Aug. 12, 2008), 
http://www.nytimes.com/2008/08/ 1 3/technology/ 1 3cyber.html. 

82. Id. 

83. See Interview by Terry Gross, National Public Radio, with James Lewis, Assessing the 
Threat of Cyberterrorism (Feb. 10, 2010), transcript available at http://www.npr.org/templates/ 
transcript/transcript.php?storyId= 123531 188 [hereinafter Lewis Interview]. 

84. Id. 

85. Id. 

86. See John Markoff, U.S. to Reveal Rules on Internet Security, NEW YORK TIMES, Mar. 1, 
2010, atA14. 

87. See David Sanger, In Digital Combat, U.S. Finds No Easy Deterrent, NEW YORK TIMES, 
Jan. 25,2010, at Al. 

88. Id. 

89. Id. 

90. See Michael Schmitt, Cyber Operations and the Jus in Bello: Key Issues, which is Chapter 
V in this volume, at 89, 97. 

91. Cyberwar, ECONOMIST, July 3, 2010, at 1 1. 

92. John F. Murphy, The Evolving Dimensions of International Law: Hard 
Choices for the World Community 266-67 (2010). 

93. See, in this connection, id. at 267-68. 

94. Cyberwar, supra note 91, at 1 1-12. 

95. See Lewis Interview, supra note 83. 



39 



Mission Impossible? International Law and the Changing Character of War 

96. William J. Lynn III, Defending a New Domain, FOREIGN AFFAIRS, Sept -Oct. 2010, at 97, 
98-99. 

97. Id. at 99-100. 

98. See Wolff Heintschel von Heinegg, Asymmetric Warfare: How to Respond?, which is 
Chapter XVII in this volume, at 463, 470-73. 

99. See Alissa J. Rubin, In Afghanistan, More Attacks on Officials and a Protest Over a Deadly 
NATO Raid, NEW YORK TIMES, Aug. 19, 2010, at A6, col. 1. 

100. As quoted in Julian E. Barnes, Battle Centers on Surge, WALL STREET JOURNAL, Aug. 27, 
2010, at A9. 

101. Id. 

102. As quoted in id. 

103. See Adam B. Ellick & Sangar Rahimi, Accounts Differ on Strike by NATO in Afghanistan, 
NEW YORK TIMES, Sept. 3, 2010, at A6; Maria Abi-Habib, Julian E. Barnes & Habib Totakhil, 
Deaths Disputed in Afghan Airstrike, WALL STREET JOURNAL, Sept. 3, 2010, at A8. 

104. See Abi-Habib, Barnes & Totakhil, supra note 103. 

105. See Ellick & Rahimi, supra note 103. 

106. See Yoram Dinstein, Concluding Remarks: LOAC and Attempts to Abuse or Subvert It, 
which is Chapter XVIII in this volume, at 483. 

107. HEADQUARTERS, DEPARTMENT OF THE ARMY & HEADQUARTERS, MARINE CORPS 

Combat Development Command, FM 3-24/MCWP 3-33.5, The U.S. Army/Marine Corps 

COUNTERINSURGENCY FIELD MANUAL (University of Chicago Press 2007) (2006). 

108. Sarah Sewall, A Radical Field Manual, Introduction to id. at xxi, xxxviii-xxxix. 

109. See Steven Lee Myers & Duraid Adnan, Attack Shows Lasting Threat to U.S. in Iraq, NEW 
York Times, Sept. 6, 2010, at Al. 



40 



PART III 



THE CHANGING CHARACTER OF THE 
BATTLEFIELD: THE USE OF FORCE IN 

CYBERSPACE 



Ill 



Cyber Attacks as "Force" under UN Charter 

Article 2(4) 



Matthew C. Waxman* 



In a 2010 article in Foreign Affairs, Deputy Secretary of Defense William Lynn 
revealed that in 2008 the Department of Defense suffered "the most significant 
breach of U.S. military computers ever" when a flash drive inserted into a US mili- 
tary laptop surreptitiously introduced malicious software into US Central Com- 
mand's classified and unclassified computer systems. 1 Lynn explains that the US 
government is developing defensive systems to protect military and civilian 
electronic infrastructure from intrusions and, potentially worse, disruptions and 
destruction, and it is developing its own cyber- strategy "to defend the United 
States in the digital age." 2 

To what extent is existing international law, including the UN Charter, ade- 
quate to regulate cyber attacks and related offensive and defensive activities today 
and in the future? By "cyber attacks" I mean efforts to alter, disrupt, degrade or de- 
stroy computer systems or networks or the information or programs on them. 3 

This article examines one slice of that legal puzzle: the UN Charter's prohibi- 
tions of the threat or use of "force" contained in Article 2(4). 4 Other writings in this 
volume deal with questions such as Article 51's self-defense provisions and ques- 
tions of State responsibility, and there are other international legal prohibitions 
and regulations that are relevant as well. But Article 2(4) is a good place to start 



* Associate Professor of Law, Columbia Law School. 



Cyber Attacks as "Force" under UN Charter Article 2(4) 

because it establishes or reflects foundational principles upon which most interna- 
tional law regulating international security sits. As a general matter, military at- 
tacks are prohibited by Article 2(4) except in self-defense or when authorized by 
the UN Security Council. Also as a general matter, most economic and diplomatic 
assaults or pressure, even if they exact tremendous costs on a target State, are not 
barred in the same way. Where along the spectrum in between might cyber attacks — 
which have some attributes of military attacks and some attributes of non-military 
pressure — lie? 

Almost a decade ago, in a previous volume of this series, Professor Yoram 
Dinstein observed of cyber attacks: "The novelty of a weapon — any weapon — 
always baffles statesmen and lawyers, many of whom are perplexed by technologi- 
cal innovation [A]fter a period of gestation, it usually dawns on belligerent par- 
ties that there is no insuperable difficulty in applying the general principles of 
international law to the novel weapon " 5 This article takes up that claim in ex- 
amining how US officials, scholars and policy experts have sought to adapt the UN 
Charter's basic principles. 

This analysis yields two descriptive insights. First, it shows that American think- 
ing (both inside and outside the government) inclines toward reading prohibited 
"force" broadly enough to include some hostile actions that might be carried out 
with bits of data in cyberspace. Although not necessarily inconsistent with inter- 
pretations previously dominating American thinking, this recent inclination re- 
flects a shift away from the stricter readings of Article 2(4) and related principles 
that the United States government defended in the past when it was often the 
United States and its allies resisting efforts by some other States to read "force" 
broadly or flexibly. 

Second, any legal line drawing with respect to force and modes of conflict has 
distributive effects on power, and it is therefore likely to be shaped by power rela- 
tions. Because States have different strategic cyber-capabilities and different vul- 
nerabilities to those capabilities, it will be difficult to reach international consensus 
with regard to the UN Charter's application to this problem. 

Article 2(4) and the Meaning of "Force" 

Modern legal regulation of force and conflict begins with the UN Charter, and 
specifically Article 2(4), which mandates that "[a] 11 Members shall refrain in 
their international relations from the threat or use of force against the territorial 
integrity or political independence of any state, or in any other manner inconsis- 
tent with the Purposes of the United Nations." 6 Article 51 then provides that 
'[n]othing in the present Charter shall impair the inherent right of individual or 

44 



Matthew C. Waxman 



collective self-defense if an armed attack occurs against a Member of the United 
Nations." 7 Although significant debate exists about the scope of self-defensive 
rights to resort to military force, it is generally agreed that the use of military force 
authorized under Article 51 is not prohibited under Article 2(4). 8 

With respect to offensive cyber-capabilities and the UN Charter, then, these 
provisions raise several major questions: In terms of Article 2(4), might a cyber 
attack constitute a prohibited "use of force"? If so, might a cyber attack give rise to a 
right to use military force in self- defensive response pursuant to the rights reserved 
in Article 51? 9 The latter question is taken up in more detail in another article in 
this volume, but because the two provisions operate in tandem it is important to 
bear in mind self-defense remedies here as well. 

Global interconnectedness brought about through information technology 
gives States and non- State actors a powerful potential weapon. Military defense 
networks can be remotely disabled or degraded. Flooding an Internet site, server or 
router with data requests to overwhelm its capacity to function — so-called "denial 
of service" attacks — can be used to take down major information networks, as 
demonstrated by an attack on Estonia (a country especially reliant on Internet 
communications) during 2007 diplomatic tensions with Russia. 10 Private-sector 
networks can be infiltrated, damaged or destroyed. 11 

Some experts speculate that the United States is at particularly heightened risk 
because of its tremendous economic and military dependency on networked infor- 
mation technology. 12 As the Obama administration's 2010 National Security Strat- 
egy acknowledged, 

[t]he very technologies that empower us to lead and create also empower those who 
would disrupt and destroy. They enable our military superiority, and . . . [o]ur daily 
lives and public safety depend on power and electric grids, but potential adversaries 
could use cyber vulnerabilities to disrupt them on a massive scale. 13 

Such possibility that massive harm could be perpetrated in cyberspace, rather than 
physical space, raises questions whether the UN Charter's foundational prohibi- 
tions and authorities — which were drafted with conventional warfare in mind — 
apply or should apply to such conduct. 

The dominant view in the United States and among its allies has long been that 
Article 2(4)'s prohibition of force and the complementary Article 51 right of self- 
defense apply to military attacks or armed violence. 14 The plain meaning of the text 
supports this view, as do other structural aspects of the UN Charter. For example, 
Articles 41 and 42 authorize, respectively, the Security Council to take actions not 
involving armed force and, only should those measures be inadequate, to escalate 



45 



Cyber Attacks as "Force" under UN Charter Article 2(4) 

to armed force. There are textual counterarguments, such as that Article 5 l's more 
specific limit to "armed attacks" suggests that drafters envisioned prohibited 
"force" as a broader category not limited to particular methods, but the discussions 
of means throughout the document suggests an intention to regulate armed force 
more strictly than other instruments of power, and this narrow interpretation has 
generally prevailed. 

An alternative view of Article 2(4) looks not at the instrument used but its pur- 
pose and general effect: that it prohibits coercion. Kinetic military force is but one 
instrument of coercion, and often the easiest to observe. At various times some 
States — usually those of the developing world or, during the Cold War, the "Third 
World" — have pushed the notion that "force" includes other forms of pressure, 
such as political and economic coercion that threatens State autonomy. 15 During 
the Charter's early years, debates similar to that over Article 2(4)'s definition of 
"force" also played out in the UN General Assembly over how to define prohibited 
"aggression." The United States and its Western allies pushed a narrow definition 
of "aggression," focused on military attacks, while developing States advocated an 
expansive definition to include other forms of coercion or economic pressure. 16 A 
problem with the latter approach has always been the difficulty of drawing lines be- 
tween unlawful coercion and lawful pressure, since coercion in a general sense is 
ever-present in international affairs and a part of everyday inter-State relations. 17 

A third possible approach toward interpreting Article 2(4) and related princi- 
ples focuses on the violation and defense of rights; specifically, that it protects 
States' rights to freedom from interference. Such an approach might tie the con- 
cept of force to improper meddling or intrusion of the internal affairs of other 
States, rather than a narrow set of means. Again, during the Charter's early years it 
was often the Third World pushing this view, as expressed in UN General Assem- 
bly resolutions. 18 Aside from the weak textual support for this approach, pragmatic 
considerations precluded the much wider interpretation, though this approach 
brings to mind possible analogies of cyber attacks to other covert efforts to under- 
mine political or economic systems, such as propaganda efforts. 

To whatever extent Article 2(4)'s meaning was settled and stable by the end of 
the Cold War in favor of a narrow focus on military force, cyber warfare poses chal- 
lenges and tests the Charter's bounds. Offensive cyber attack capabilities such as 
taking down government or private computer systems share some similarities with 
kinetic military force, economic coercion and subversion, yet also have unique 
characteristics and are evolving rapidly. The possibility of cyber attacks therefore 
raises difficult line-drawing questions and requires re-examination of previous US 
legal strategy toward Charter interpretation. 



46 



Matthew C. Waxman 



Emergent US Interpretation 

The examples of competing interpretations drawn from early legal debates over the 
UN Charter are useful for two reasons. First, they help show that some fundamen- 
tal issues involved in current discussions of cyber attacks are not entirely new or 
unique to cyber-technology. Modes and technologies of conflict change, and the 
law adjusts with varying degrees of success to deal with them. Second, they high- 
light some subtle but important realignments of US legal- strategic interests. 

The United States government has not articulated publicly a general position on 
cyber attacks and Articles 2(4) and 51, though no doubt internally the US govern- 
ment's actions are guided by extant legal determinations developed through inter- 
agency deliberation. There is, in the meantime, considerable momentum among 
American scholars and experts toward finding that some cyber attacks ought to fall 
within Article 2(4) 's prohibition on "force" or could constitute an "armed attack," 
insofar as those terms should be interpreted to cover attacks with features and con- 
sequences closely resembling conventional military attacks or kinetic force. The 
National Research Council convened a committee to study cyber warfare. It con- 
cluded that cyber attacks should be judged under the UN Charter and customary 
jus ad helium principles by considering whether the effects of cyber attacks are tan- 
tamount to a military attack. 19 Michael Schmitt, in a seminal article on the topic, 
proposes that whether a cyber attack constitutes force depends on multiple factors 
that characterize military attacks, including severity, immediacy, directness, 
invasiveness, measurability and presumptive legitimacy. 20 Other legal experts 
have proposed similar tests emphasizing effects, 21 and some policy experts have 
come to similar conclusions in terms of US defensive doctrine against cyber attacks. 
Richard Clarke, for example, proposes a doctrine of "cyber equivalency^ in which 
cyber attacks are to be judged by their effects not their means. They would be 
judged as if they were kinetic attacks, and may be responded to by kinetic attacks, 
or other means." 22 

Statements by senior US government officials have either hinted that the United 
States would regard some cyber attacks as prohibited force or declined to rule out 
that possibility. In 1999, the Defense Department's Office of the General Counsel 
produced an Assessment of International Legal Issues in Information Operations. 
That report noted: 

If we focused on the means used, we might conclude that electronic signals impercepti- 
ble to human senses don't closely resemble bombs, bullets or troops. On the other 
hand, it seems likely that the international community will be more interested in the 
consequences of a computer network attack than its mechanism. 23 



47 



Cyber Attacks as "Force" under UN Charter Article 2(4) 

It further suggested that cyber attacks could constitute armed attacks giving rise to 
the right of military self-defense. 24 

Recent statements by senior US government officials appear consistent with 
that view. In a 2010 address, Secretary of State Hillary Clinton declared US inten- 
tions to defend its cybersecurity in terms similar to those usually used to discuss 
military security: 

States, terrorists, and those who would act as their proxies must know that the United 
States will protect our networks. . . . Countries or individuals that engage in cyber at- 
tacks should face consequences and international condemnation. In an interconnected 
world, an attack on one nation's networks can be an attack on all. 25 

In testifying before the Senate committee considering his nomination to head 
the new Pentagon Cyber Command, Lieutenant General Keith Alexander ex- 
plained that "[t]here is no international consensus on a precise definition of a use 
of force, in or out of cyberspace. Consequently, individual nations may assert dif- 
ferent definitions, and may apply different thresholds for what constitutes a use of 
force." 26 He went on, however, to suggest that "[i]f the President determines a 
cyber event does meet the threshold of a use of force/armed attack, he may deter- 
mine that the activity is of such scope, duration, or intensity that it warrants exer- 
cising our right to self-defense and/or the initiation of hostilities as an appropriate 
response." 27 Implicit here seems to be a notion that "force" is, to some extent, 
about effects or consequences of hostile actions. 

The United States government probably prefers an effects-based or consequences- 
based interpretation of "force" or "armed attack" with respect to cyber attacks for 
what it prohibits, as well as for what it does not prohibit. Under such an approach, 
for example, computer-based espionage, intelligence collection or perhaps even 
preemptive cyber-operations to disable hostile systems would not constitute prohib- 
ited force, because they do not produce direct or indirect destructive consequences 
analogous to a military attack. 28 As former National Security Agency Director 
Michael Hayden recently remarked, "Without going into great detail, we're 
actually pretty good at [cyber-espionage]." 29 Hayden's comment helps illustrate 
also a reason why it will be difficult for the United States government to develop 
and articulate clear legal positions on what sorts of actions in cyberspace constitute 
illicit force: because the key agencies have divergent policy priorities amid a rapidly 
evolving strategic environment. Some agencies are charged with protecting the 
integrity of US military capabilities; some are dedicated to intelligence collection, often 
involving infiltration of foreign computer networks and information systems; 
some prioritize protecting US civilian infrastructure, including the private sector's; 



48 



Matthew C Waxman 



and others are focused on transnational law enforcement and enhancing interna- 
tional cooperation. These divergent policy priorities probably make it difficult to 
agree on how broadly or narrowly to draw legal lines, whether to drive toward legal 
clarity at all, and whether to engage publicly or diplomatically on these points. 

Challenges of Regulating Cyber-"Force" 

Even if Article 2(4) is interpreted to prohibit some forms of offensive cyber attacks, 
it would prove difficult to apply and enforce that prohibition. The difficulties of 
regulating certain types of conflicts in earlier eras of UN history help demonstrate 
these challenges. 

Lamenting in 1970 the "death" of Article 2(4), Professor Thomas Franck as- 
sessed that rapid changes in the way conflict was waged had made its prohibitions 
of force obsolete. Whereas "[t]he great wars of the past, up to the time of the San 
Francisco Conference, were generally initiated by organized incursions of large 
military formations of one state onto the territory of another, incursions usually 
preceded by mobilization and massing of troops and underscored by formal decla- 
rations of war," Franck observed that "[mjodern warfare . . . has inconveniently 
by-passed these Queensberry-like practices." 30 Superpowers routinely supported 
insurgencies, rebel movements and coups against States supporting the other 
power with various forms of assistance, including arms. Small-scale wars and sub- 
version and counter-subversion waged through local proxies became a common 
mode of superpower conflict, rather than direct, conventional military action. 31 The 
UN Charter regime was ill equipped to handle conflict that unfolded in these ways. 

Franck's concern was that modes of conflict had outstripped the UN Charter 
regime's ability to impose costs on purported violators. Indeed, whatever costs 
Article 2(4) imposed on conventional military attacks across borders may even have 
pushed antagonists toward other modes of conflict. In another volume of this series 
dedicated to what was often referred to as "low-intensity conflict," Alberto Coll 
remarked in 1995 that "[t]he high political, military, and economic risks increas- 
ingly associated through the course of the twentieth century with open, conven- 
tional war have led many States and non-State entities to shift to other forms of 
violence as instruments of foreign policy." 32 Robert Turner agreed, noting that 
"the low- intensity conflict scenario is selected because it provides a colorable claim 
of legitimacy (being less obvious)." 33 

Questions for conflict in cyberspace then follow: Can Article 2(4)'s constraints 
adjust to cyber- capabilities in ways that differentiate illicit conduct from legal, and 
in ways that help impose costs for non-compliance? Can such interpretations com- 
mand the respect of powerful actors in the international system? 

49 



Cyber Attacks as "Force" under UN Charter Article 2(4) 

One reason why cyber attacks will be difficult to regulate is that the factual bases 
for asserting a violation of 2(4) — or a right of armed self-defense under Article 
51 — will be subject to great uncertainty and difficult to verify. Some technologies 
or modes of conflict pose special challenges for international legal regulation be- 
cause their attributes match poorly with the enforcement mechanisms, which 
sometimes include formal processes like UN Security Council review but more of- 
ten involve decentralized assessment and evaluation by individual States, interna- 
tional bodies and other influential international actors. 34 

Those who study the problem of legally regulating cyber attacks usually point to 
the tricky problem of attribution. That is, it will often be difficult to discern quickly 
and accurately who launched or directed an attack. 35 The nature of electronic in- 
formational infrastructure and the limits of forensic capabilities are such that it 
may be impossible technically to link an attack to the party ultimately 
responsible. 36 As Deputy Secretary Lynn put it, "It is difficult and time consuming to 
identify an attack's perpetrator. Whereas a missile comes with a return address, a 
computer virus generally does not. The forensic work necessary to identify an at- 
tacker may take months, if identification is possible at all." 37 

Again, though, this is not an entirely new problem for Article 2(4), because 
similar attribution issues arose in the context of Cold War proxy warfare and 
low-intensity conflict. "The small-scale and diffuse but significant and frequent 
new wars of insurgency have," explained Franck in 1970, "made clear-cut distinc- 
tions between aggression and self-defense, which are better adapted to conven- 
tional military warfare, exceedingly difficult." 38 Furthermore, "[w]ith the hit-and- 
run tactics of wars of national liberation, on the other hand, it is often difficult even 
to establish convincingly, from a pattern of isolated, gradually cumulative events, 
when or where the first round began, let alone at whose instigation, or who won 
it." 39 Unconventional warfare and support for insurgencies and counterinsurgen- 
cies often by design featured inconclusive evidence of foreign involvement or hos- 
tile action, and foreign State antagonists worked to mask, conceal or obscure their 
participation. 40 This legal-factual murkiness helps explain why Article 2(4) seemed 
so impotent in addressing that form of conflict and why that mode of conflict 
offered an appealing option to the Cold War antagonists: "The covert nature and 
elusive instrumentalities of unconventional warfare make it difficult for societies 
under attack to identify the source of the threat and to rally domestic and interna- 
tional opinion." 41 In other words, once conflict was waged through proxies, it was 
difficult to develop international consensus about the relevant facts, let alone legal 
violation or justification. 

Like proxy conflicts of the Cold War, but to a much larger extent, cyber-conflict 
is likely to feature ambiguous or disputed facts about what exactly occurred, 

50 



Matthew C. Waxman 



including who committed the electronic intrusion or disruption, and on whose be- 
half they were doing it. 42 Consider again the case of Estonia, in which it took 
months to compile still murky information about the source of attacks on Estonian 
computer networks, and many key facts — including ultimate responsibility for 
directing or encouraging them — remain subject to debate. 43 Evidence of Russian 
involvement was mostly circumstantial and Russian officials denied involvement. 44 
There is also evidence suggesting that the Russian government may have encouraged 
non-government "patriotic hackers" to conduct attacks, and that other countries, like 
China, may be relying similarly on legions of quasi-private hackers. 45 

The factual haze that plagued efforts to regulate Cold War proxy conflicts will be 
significantly exacerbated in the cyber-conflict context because of the greater ability 
of participants to anonymize or mask their identities and because actions in cyber 
warfare can be so decentralized and dispersed, and often conducted on private 
infrastructure. 46 Even if forensic processes can trace a cyber attack to its source, 
States may be unable to publicize that information in a timely and convincing way, 
especially when those States are likely to have strong incentive not to discuss the 
technical details of informational security breaches or reveal their own capabilities 
to intruders. 47 These are among the reasons that the National Research Council 
study concluded that "[wjhile in most conflicts, both sides claim that they are act- 
ing in self-defense, cyberconflicts are a particularly messy domain in which to air 
and judge such claims." 48 

Like unconventional conflicts of the Cold War but to an even greater degree, 
cyber warfare may lack clearly discernable starting and end points or easily visible 
or verifiable actions and countermoves. This does not mean that drawing legal 
boundaries is impossible. It does suggest, however, that efforts to promote clear in- 
ternational legal prohibitions, or the accretion of interpretive practice command- 
ing broad consensus, will likely be especially protracted and uncertain. 

Power Relations and Regulating Cyber Attacks 

The early history of and debates about Article 2(4) also illustrate that competing 
interpretations of the UN Charter have always reflected allocations of power. 
Those with more power have greater ability to promote through State practice their 
preferred interpretation. Moreover, efforts to revise the legal rules may have 
redistributive effects on power, by affecting the costs and benefits of using certain 
capabilities. 

As described above, a fundamental dispute about Article 2(4) has from the be- 
ginning concerned the prohibition's breadth: does Article 2(4) ban military vio- 
lence only, or does it also ban other forms of coercion, including economic 

51 



Cyber Attacks as "Force" under UN Charter Article 2(4) 

coercion? Although weak States of the developing world often argued that Article 
2(4) prohibited a much broader category of coercion than just military force, 49 that 
position never took hold. The more restrictive interpretation generally confined to 
military means and pushed by the United States largely prevailed. 

This interpretation suited the United States well during most of the Charter's 
history. The costs it placed on States of resorting first to conventional armed force 
in a crisis were high, thereby generally helping to preserve territorial stability and 
prevent escalation. Meanwhile, the United States could build its defenses beneath 
the umbrella of nuclear deterrence, grow its economy and expand its influence, all 
the while relatively free to wield its tremendous economic and diplomatic power 
without the fear of reciprocal coercion. 50 

Against that historical backdrop, a reason that the United States has an interest 
in regulating cyber attacks but why it will probably be difficult to do so through in- 
ternational law, whether interpreting existing treaties or custom or negotiating 
new legal agreements, is because the distribution of emerging cyber- capabilities 
(offensive and defensive) and vulnerabilities (in terms of ability to block actions as 
well as ability to withstand or tolerate attacks) may not correspond to the previous 
or present distribution of power composed of older forms of military and 
economic might. 

Indeed, some US strengths rely on informational interconnectedness and infra- 
structure that is global, mostly private and rapidly evolving, but these strengths are 
also therefore inextricably linked to emerging vulnerabilities. 51 Although many ex- 
perts assess that the United States is currently strong relative to others in terms of 
some offensive capabilities, 52 several factors make the United States especially vul- 
nerable to cyber attacks, including the extensive interconnectivity of its military 
and critical infrastructure and its political aversion to heavy regulation of private- 
sector networks. 53 

Rapidly evolving cyber-capabilities have the potential to alter power balances 
among States because some are more vulnerable than others, and attacks could 
have disproportionately large impacts on some countries or their military capa- 
bilities. 54 Developing an offensive cyber warfare capability is likely to be less costly 
than competing economically or militarily with much stronger States. 55 It is 
therefore not surprising to see some regional rogues or aspirants for power devel- 
oping offensive cyber warfare capabilities. 56 

As for other major powers, such as Russia and China, they may calculate their 
strategic interests with respect to cyber warfare and possible legal restrictions on it 
differently than the United States in light of their own capabilities and vulnerabili- 
ties, as well as the degree to which international law constrains their actions. 57 Rus- 
sia, for example, has proposed to the United Nations a draft statement of principles 

52 



Matthew C. Waxman 



that would prohibit the development of cyber attack capabilities, but in the mean- 
time it is investing in the development of such tools. 58 Some analysts are therefore 
skeptical of Russia's sincerity in proposing such agreements, especially given the 
difficulties of verification in this arena. 59 China likely sees cyber warfare capabili- 
ties as a way of equalizing the conventional military superiority of the United 
States, and the extent to which public and private lines in China blur may provide 
China additional advantages in the cyber- conflict realm. 60 

Again, though, consideration of any proposed UN Charter interpretation must 
account for the processes by which the Charter is interpreted, applied and en- 
forced. The likely factual uncertainty of alleged cyber attacks and the pressures to 
launch responsive strokes more quickly than those facts can be resolved may require 
urgent policy decision making amid legal ambiguity. The United States may prefer 
relatively clear standards with respect to cyber-actions that have immediate de- 
structive effects (at least clear enough to justify military responses or deterrent 
threats to some scenarios), while at the same time it may prefer some flexibility or 
permissive vagueness with respect to intelligence collection or some other intru- 
sive measures in cyberspace, so as not to seriously inhibit those activities in which 
it holds comparative advantages. 61 Other States, however, may see benefits in a 
different mix of doctrinal line drawing and clarity, in some cases because they are 
less constrained internally by law than the United States, or because they contem- 
plate using a different mix of cyber-capabilities, or because they see themselves as 
potential victims (or innocent bystanders) of actions in cyberspace that they 
would hope to paint legally and diplomatically as impermissible aggression. 

In this strategic context, emergent US legal interpretations and declaratory pos- 
tures may be seen as part of an effort to sustain a legal order that preserves US com- 
parative advantages. In moving toward a view of Article 2(4) that would prohibit 
some cyber attacks by emphasizing their comparable effects to conventional mili- 
tary attacks, such interpretations help deny that arsenal to others, by raising the 
costs of its use. At the same time, by casting that prohibition in terms that would in 
some circumstances help justify resort to military force in self-defense under Arti- 
cle 51, this interpretation lowers the costs to the United States of using or 
threatening its vast military edge. 

That any drawing or redrawing of legal lines creates strategic winners and losers 
will make it difficult to reach agreement on legal prohibitions, whether through in- 
terpretive evolution of the UN Charter or through new legal agreements. 62 Success 
therefore depends on the ability of proponents not only to articulate but to defend 
those legal lines using various forms of influence. That is, the strength of a new legal 
regime to regulate cyber attacks will, as always, depend to a large extent on the allo- 
cation of power that cyber-technological developments are reshaping. 

53 



Cyber Attacks as "Force" under UN Charter Article 2(4) 

Conclusion 

As Professor Michael Reisman reminds us, 

[international law is still largely a decentralized process, in which much lawmaking 
(particularly for the most innovative matters) is initiated by unilateral claim, whether 
explicit or behavioral. Claims to change inherited security arrangements . . . ignite a 
process of counterclaims, responses, replies, and rejoinders until stable expectations of 
right behavior emerge. 63 

It is possible, but unlikely, that States will soon come together and clarify through 
new legal instruments the permissible bounds of actions in cyberspace. More likely 
is a slow accretion of interpretation as crises unfold and claims and counterclaims, 
reflecting distributions of power in their content and strength, remold the UN 
Charter regime's contours around new forms of conflict. A policy upshot of this 
analysis is that, to be effective, legal strategy must be integrated with cyber warfare 
strategy, including efforts to promote offensive, defensive, preemptive, deterrent 
and intelligence capabilities amid a security environment that is evolving rapidly 
and unpredictably. 

Notes 

1. See William J. Lynn III, Defending a New Domain, FOREIGN AFFAIRS, Sept.-Oct. 2010, 
at 97. 

2. Id. at 98. 

3. This definition is based on the one used in the National Research Council's Committee 
on Offensive Information Warfare's TECHNOLOGY, POLICY, LAW, AND ETHICS REGARDING U.S. 
ACQUISITION AND USE OF CYBERATTACK CAPABILITIES (William A. Owens, Kenneth W. Dam & 
Herbert S. Lin eds., 2009) [hereinafter NRC COMMITTEE REPORT]. 

4. Some of the observations and arguments contained in this article are developed further 
in Matthew C. Waxman, Cyber- Attacks as "Force": Back to the Future of Article 2(4), YALE 
JOURNAL OF INTERNATIONAL LAW (forthcoming 201 1). 

5. See Yoram Dinstein, Computer Network Attacks and Self-Defense, in COMPUTER 
Network Attack and International Law 99, 114 (Michael N. Schmitt & Brian T. 
O'Donnell eds., 2002) (Vol. 76, US Naval War College International Law Studies) [hereinafter 
CNA and International Law]. 

6. U.N. Charter art. 2, para. 4. 

7. Id., art. 51. 

8. See Thomas M. Franck, Recourse to Force: State Action against Threats and 
Armed attacks 45-52 (2002). 

9. For a survey of approaches to these legal questions, see Daniel B. Silver, Computer Network 
Attack as a Use of Force under Article 2(4) of the United Nations Charter, in CNA AND 
I\ 1 1 RNATIONAL LAW, supra note 5, at 73. There is continuing debate about whether there is a gap 
between Articles 2(4) and 51, insofar as a use of force prohibited by 2(4) might not be sufficient 

54 



Matthew C. Waxman 



to trigger a right to use military force in self-defense. See Albrecht Randelzhofer, Article 51, in 1 
The Charter of the United Nations: A Commentary 788, 790 (Bruno Simma et al. eds., 2d 
ed. 2002). 

10. See EvgenyMorozov, The Fog of Cyberwar, NEWSWEEK, Apr. 27, 2009, International Edi- 
tion, World Affairs, at 0; Jonathan Schwartz, When Computers Attack, NEW YORK TIMES, June 
24, 2007, §WK,atl. 

11. Press Statement, John Chipman, Director-General of the International Institute for 
Strategic Studies, The Military Balance 2010 (Feb. 3, 2010), http://www.iiss.org/publications/ 
military-balance/the-military-balance-20 1 0/military-balance-20 1 0-press-statement/. 

12. See NRC COMMITTEE REPORT, supra note 3, at 17-20; Walter Gary Sharp Sr., The Past, 
Present, and Future of Cybersecurity, 4 JOURNAL OF NATIONAL SECURITY LAW & POLICY 13 
(2010). 

13. The White House, National Security Strategy 27 (2010), available at http://www 
.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf. 

14. See Tom J. Farer, Political and Economic Coercion in Contemporary International Law, 79 
American Journal of International Law 405, 408 (1985); NRC Committee Report, supra 
note 3, at 253. 

15. See YORAM DlNSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 18 (2d ed. 1994); Hans 
Kelsen, General International Law and the Law of the United Nations, in THE UNITED NATIONS: 
Ten Years' Legal Progress 1, 5 (Gesina H.J. Van Der Molen et al. eds., 1956); AHMED M. 
Rifaat, International aggression: A Study of the Legal Concept 120, 234 (1980); 

Albrecht Randelzhofer, Article 2(4), in 1 THE CHARTER OF THE UNITED NATIONS: A COM- 
MENTARY, supra note 9, at 1 18. 

16. See JULIUS STONE, CONFLICT THROUGH CONSENSUS 87-104 (1977). 

17. See Farer, supra note 14, at 406. 

18. Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States 
and the Protection of Their Independence and Sovereignty, U.N. GAOR, 20th Sess., Supp. No. 
14, at 11, U.N. Doc. A/6014 (Dec. 21, 1965) ("all . . . forms of interference or attempted threats 
against the personality of the State or against its political, economic and cultural elements, are 
condemned" and "No State may use or encourage the use of economic, political or any other 
type of measures to coerce another State in order to obtain from it the subordination of the exer- 
cise of its sovereign rights or to secure from it advantages of any kind."). 

19. See NRC COMMITTEE REPORT, supra note 3, at 33-34; see also IAN BROWNLIE, 

International Law and the Use of Force by States 362-63 (1963) (defining "use of force" 
by looking beyond immediate death or injury from impact to the destructive effects). 

20. See Michael N. Schmitt, Computer Network Attack and the Use of Force in International 
Law: Thoughts on a Normative Framework, 37 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 
885,914-15(1999). 

21. See, e.g., Silver, supra note 9, at 92. 

22. See, e.g., RICHARD A. CLARKE, CYBER WAR 178 (2010) (proposing a doctrine of cyber 
equivalency) (italics in original). 

23. Reprinted in CNA AND INTERNATIONAL LAW, supra note 5, at 459, 483. 

24. See id. 

25. Secretary of State Hillary Rodham Clinton, Remarks on Internet Freedom at the 
Newseum, Washington, D.C. (Jan. 21, 2010), http://www.state.gov/secretary/rm/2010/01/ 
135519.htm. 



55 



Cyber Attacks as "Force" under UN Charter Article 2(4) 

26. Responses by Lieutenant General Keith Alexander, Nominee for Commander, United 
States Cyber Command to Senate Armed Services Committee Advance Questions (Apr. 15, 2010), 
at 1 1, http://armed-services.senate.gov/statemnt/2010/04%20April/Alexander%2004-15-10.pdf. 

27. Id. at 12. 

28. See NRC COMMITTEE REPORT, supra note 3, at 259-61. 

29. Thomas M. Franck, Who Killed Article 2(4)? Or: Changing Norms Governing the Use of 
Force by States, 64 AMERICAN JOURNAL OF INTERNATIONAL LAW 809, 812 (1970). 

30. Quoted in Kim Zetter, Former NSA Director: Countries Spewing Cyber Attacks Should Be 
Held Responsible, WlRED.COM (July 29, 2010), http://www.wired.com/threatlevel/2010/07/ 
hayden-at-blackhat/. 

3 1 . See Franck, supra note 29, at 8 1 2-20. 

32. Alberto R. Coll, Unconventional Warfare, Liberal Democracies, and International Order, 
in Legal and Moral Constraints on Low- Intensity Conflict 3, 3 (Alberto R. Coll, James 
S. Ord & Stephen A. Rose eds., 1 995) (Vol. 67, US Naval War College International Law Studies). 

33. Robert F. Turner, State Sovereignty, International Law, and the Use of Force in Countering 
Low-Intensity Aggression in the Modern World, in id. at 43, 60. 

34. See Oscar Schachter, The Right of States to Use Armed Force, 82 MICHIGAN LAW REVIEW 
1620, 1645-46(1984). 

35. See NRC COMMITTEE REPORT, supra note 3, at 138-41, 252; Duncan B. Hollis, Why 
States Need an International Law for Information Operations, 11 LEWIS & CLARK LAW REVIEW 
1023, 103 1-32 (2007); John Markoffet al., In Digital Combat, U.S. Finds No Easy Deterrent, NEW 
YORK TIMES, Jan. 26, 2010, at 1 (discussing difficulties of determining source of cyber attacks). 

36. See Jack Goldsmith, The New Vulnerability, NEW REPUBLIC, June 24, 2010, at 21, 23. 

37. Lynn, supra note 1, at 99. 

38. FRANCK, supra note 8, at 820. 

39. Id. 

40. See Coll, supra note 32, at 15-16. 

41. See id. at 4. 

42. See Hollis, supra note 35, at 1031-32. 

43. See NRC COMMITTEE REPORT, supra note 3, at 173. 

44. See id. 

45. See Anne Applebaum, For Estonia and NATO, a New Kind of War, WASHINGTON POST, 
May 22, 2007, at A15; David E. Sanger et al., U.S. Plans Attack and Defense in Web Warfare, NEW 
YORK TIMES, Apr. 28, 2009, at Al. 

46. See Sean P. Kanuck, Information Warfare: New Challenges for Public International Law, 
37 Harvard International Law Journal 272, 286-88 (1996). 

47. The disclosures by Deputy Secretary Lynn described earlier are a case in point, as it took 
several years for the government to declassify the information, and that decision itself was con- 
troversial. See Ellen Nakashima, Defense Official Discloses Cyberattack, WASHINGTON POST, 
Aug. 24, 2010, at A3. 

48. See NRC COMMITTEE REPORT, supra note 3, at 315. 

49. See STONE, supra note 16, at 96; Julius Stone, Hopes and Loopholes in the 1974 Definition 
of Aggression, 71 AMERICAN JOURNAL OF INTERNATIONAL LAW 224 (1977). 

50. See Tom J. Farer & Christopher C. Joyner, The United States and the Use of Force, 1 
TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 15, 22-23 (1991). 

51. See PHILIP BOBBITT, THE SHIELD OF ACHILLES 792-94 (2002). 



56 



Matthew C. Waxman 



52. See Jack Goldsmith, Can We Stop the Global Cyber Arms Race?, WASHINGTON POST, 
Feb. 1, 2010, at A17 ("the U.S. government has perhaps the world's most powerful and sophisti- 
cated offensive cyberattack capability"). 

53. See CLARKE, supra note 22, at 226-27. 

54. See id. at 259. For views more skeptical that cyber-capabilities will radically alter power 
balances, see generally MARTIN C. LlBICKI, CONQUEST IN CYBERSPACE (2007); GREGORY J. 
RATTRAY, STRATEGIC WARFARE IN CYBERSPACE (2001). 

55. See STEWART BAKER, SKATING ON STILTS 218-20 (2010). 

56. See Choe Sang-Hun & John Markoff, Cyberattacks Jam Government and Commercial 
Web Sites in U.S. and South Korea, NEW YORK TIMES, July 9, 2009, at A4 (North Korea). 

57. For discussion of such legal jockeying among States, see Sean Kanuck, Sovereign Dis- 
courseon Cyber Conflict Under International Law, 88 TEXAS LAW REVIEW 1571, 1585-87 (2010). 

58. See NRC COMMITTEE REPORT, supra note 3, at 329-32; John Markoff & Andrew E. 
Kramer, U.S. and Russia Differ on Treaty for Cyberspace, NEW YORK TIMES, June 28, 2009, at Al. 

59. See BAKER, supra note 55, at 230-31. 

60. See NRC COMMITTEE REPORT, supra note 3, at 332-33; Office of the Secretary of De- 
fense, Annual Report to Congress: Military Power of the People's Republic of China 27-28 
(2009). 

61. As a general matter, international law has very little to say about intelligence collection. 
See Kanuck, supra note 46, at 275-76. 

62. See Goldsmith, supra note 36, at 26. 

63. W. Michael Reisman, Assessing Claims to Revise the Laws of War, 97 AMERICAN JOURNAL 
OF INTERNATIONAL LAW 82, 82 (2003). 



57 



IV 



Low-Intensity Computer Network Attack and 

Self-Defense 



Sean Watts* 

I. Introduction 

In May 2010, the United States Department of Defense activated the US Cyber 
Command, 1 consolidating leadership of six previously dispersed military orga- 
nizations devoted to cyber operations. 2 To its supporters, Cyber Command repre- 
sented a significant accomplishment as congressional misgivings over the 
command's mission, its effects on American citizens' privacy and ambiguous lim- 
its on its authority had delayed activation for nearly a year. 3 

These concerns featured prominently in the confirmation of Lieutenant Gen- 
eral Keith Alexander, the President's nominee to lead Cyber Command. In written 
interrogatories, the Senate Armed Services Committee asked, "Is there a substan- 
tial mismatch between the ability of the United States to conduct operations in 
cyberspace and the level of development of policies governing such operations?" 4 
General Alexander's response identified a gap "between our technical capabilities 
to conduct operations and the governing laws . . . ." 5 However, he later observed, 
"Given current operations, there are sufficient law, policy, and authorities to gov- 
ern DOD cyberspace operations." 6 



* Associate Professor, Creighton University Law School; Assistant Department Chair, Interna- 
tional & Operational Law Department, The Judge Advocate General's School, United States 
Army Reserve. 



Low-Intensity Computer Network Attack and Self-Defense 

General Alexander's responses often struck such dissonant tones. And while his 
unclassified responses generally offered little legal reflection, he commented in de- 
tail on international self-defense law and cyber operations. 7 His responses por- 
trayed existing law under the UN Charter as adequate to defend US interests from 
cyber attack. Further, he indicated the United States would evaluate threats and at- 
tacks in the cyber domain exactly as it would in other security realms. 8 Yet, the 
same section of responses noted a lack of international legal consensus concerning 
which cyber events violate the prohibition on the use of force or activate the right 
of self-defense, suggesting a less than coherent structure to this important interna- 
tional legal regime. 9 

Meanwhile, cyber attacks have rapidly migrated from the realm of tech-sawy 
doomsayers to the forefront of national security consciousness. 10 One need no lon- 
ger be an experienced programmer or use much imagination to appreciate the 
threat posed by cyber attacks. Incidents such as the disruptions experienced in Es- 
tonia in 2007 and Georgia in 2008 provide concrete examples of practices, trends 
and potential harm posed by future cyber events. 11 

Similarly, cyber conflict theorists paint an increasingly lucid picture of the strat- 
egy and tactics that will inspire future attacks and shape defensive efforts. Cyber 
strategy is evolving rapidly, as threat capabilities and tactics shift to exploit newly 
discovered vulnerabilities. While defending against massive cyber catastrophes re- 
mains a priority for planners, a growing contingent of cyber theorists concludes 
that campaigns of diffuse, low-intensity attacks offer an increasingly effective strat- 
egy for cyber insurgents and State actors alike. Operating below both the focus of 
defensive schemes and the legal threshold of States' authority to respond with 
force, low-intensity cyber attacks may prove to be a future attack strategy of choice 
in cyberspace. 

The confluence of Cyber Command's activation with publication of details of 
recent cyber incidents, as well as insight into emerging cyber strategy, provides an 
opportunity to critically evaluate General Alexander's assessment of the interna- 
tional law of self-defense as well as the overall significance of the events in Estonia 
and Georgia. Specifically, it is worthwhile to consider whether the bargain govern- 
ing use of force reflected in the 1945 UN Charter is adequate for the threats facing 
States today and for the future of cyberspace. Put differently, will the letter of the 
Charter's use-of- force regime operate as an effective regulation of States' efforts to 
secure cyberspace from one another and from non-State threats? 

This article argues that the above-mentioned developments in cyber conflict 
will greatly strain the existing self-defense legal regime and cast past computer net- 
work attacks (CNA), such as the Estonian and Georgian incidents, in a new light. 
First, gaps in the law's response structure will prove highly susceptible to 

60 



Sean Watts 



low-intensity cyber attacks, leaving victim States to chose between enduring dam- 
aging intrusions and disruptions or undertaking arguably unlawful unilateral re- 
sponses. Second, and related, CNA will produce a significantly expanded cast of 
players, creating a complex and uncontrollable multipolar environment compris- 
ing far more States and non-State actors pursuing far more disparate interests than 
in previous security settings. CNA are unprecedented conflict levelers. CNA tech- 
nology is inexpensive, easy to acquire and use, and capable of masking identity. 
CNA permit otherwise weak States and actors to challenge security hegemony at 
low economic and security cost. Ultimately, these developments will test States' 
commitment to the collective security arrangement of the Charter and its 
accompanying restraints on unilateral uses of force to a far greater extent than 
previously experienced. 

Efforts to prevent or defeat massive, debilitating CNA surely warrant attention 
and resources. However, if such incidents represent aberrations from the majority 
of cyber hostilities, exclusive legal attention to such catastrophes is surely mis- 
placed. Accounting for and addressing low-intensity CNA are equally — if not 
more — important to maintaining international order and a place for law in 
securing cyberspace. 

The inquiry begins with a snapshot of the law governing resort to self-defense. 

II. Self-Defense under the UN Charter 

Legal accounts of self-defense doctrine vary greatly. Debates on preemptive and 
anticipatory self-defense, 12 collective self-defense, 13 armed retribution or repri- 
sal, 14 and burdens of proof 15 remain highly contentious and relevant to CNA. At 
times it seems each examination of these self-defense subtopics generates as many 
aspects as authors. This section will focus on two distinct but related issues con- 
cerning the doctrine of self-defense: first, the relevance of the right of self-defense 
to interactions with non-State actors and, second, the threshold of "armed attack" 
which gives rise to the right to exercise self-defense. The unsettled and evolving 
nature of these issues will prevent a definitive account of either, yet will set the 
stage for an illustration of how low-intensity CNA may influence the development 
of each. 

Self-Defense against Non-State Actors 

The plainest and most widely accepted understanding of the UN Charter por- 
trays self-defense as an exception to the nearly comprehensive ban on the use of 
force by States. 16 Article 2(4) forbids the threat or use of force by States in their 
international relations. 17 Meanwhile, Article 51 provides one of two enumerated 

61 



Low-Intensity Computer Network Attack and Self-Defense 

exceptions, permitting Member States to take measures in self-defense in response 
to "armed attack." 18 The relevance of the self-defense exception to interactions be- 
tween States is obvious. If Article 2(4) regulates the use of force "in . . . interna- 
tional relations" and Article 51 is intended as a legal exception, then the event that 
most obviously activates the right is armed attack by other States, the only entities 
traditionally capable of conducting international relations under the Charter. 19 

Less clear, at least as a legal matter, is how, if at all, the self-defense exception 
applies to "armed attack" by non-State actors. Traditionally, law enforcement 
models, not directly influenced by the Charter, have guided State responses to 
non-State actors. 20 Yet current international and transnational security environ- 
ments, shaped by a dramatic rise in the destructive capacity of violent non-State 
actors, 21 strongly suggest a role for self-defense beyond interactions between States. 22 
While as a legal matter the UN Charter security regime is inapposite to State re- 
sponses to non-State actors without links to State actors, such as attacks launched 
from terra nullius or international waters, such situations seem unlikely or at least 
exceedingly rare. 23 Far more prevalent are hostile activities by non-State actors 
based on or launched from UN Member States' sovereign territories, where the 
Charter's use-of-force regime operates clearly in theory if not so clearly in prac- 
tice. A fractured and incomplete jurisprudence has emerged to cover the issue. 
Two International Court of Justice (ICJ) opinions address self-defense and non- 
State actors under the Charter. 

Confronted by decades of attacks from outside its territory, Israel, in 2002, be- 
gan work on a 450-mile barrier comprised alternately of concrete walls, fencing, 
wire and electronic sensors. 24 Encroaching on Palestinian territory, the barrier 
greatly restricted vehicle and pedestrian traffic. In its filings for the 2004 Wall advi- 
sory opinion, Israel justified construction of the wall on Palestinian territory as an 
exercise of self-defense under Article 51. 25 The argument was consistent with prior 
Israeli assertions to the General Assembly that self-defense included "the right of 
States to use force in self-defence against terrorist attacks." 26 

In a split decision, the Court rejected the Israeli claim. The Court asserted Arti- 
cle 51 had "no relevance" to interactions with non-State actors such as Palestine. 27 
The advisory opinion is nearly summary in this regard, providing no interpretive 
support, citations to travaux preparatories or examples of State practice. The Court 
also left unaddressed a point raised in Judge Higgins's separate opinion that the 
text of Article 5 1 does not include any indication "that self-defense is only available 
when armed attack is made by a State." 28 In his declaration, Judge Buergenthal ex- 
pressed similar objection to the Court's opinion. He argued the Court gave inade- 
quate weight to the fact the attacks originated outside Israeli borders, whatever the 
international legal status of that territory. 29 

62 



Sean Watts 



Further criticism of the advisory opinion 30 focused on the Court's failure to 
consider State practice since adoption of the Charter. 31 States have routinely in- 
voked self-defense doctrine, and Article 51 specifically, to justify the use of force 
against non-State actors. Several commentators have catalogued States' post-Charter 
resort to measures in self-defense against non-State actors, including actions taken 
by the United States, Israel, Portugal, Russia, Ethiopia and South Africa. 32 These 
accounts, and Security Council reactions thereto, paint a portrait of self-defense far 
more relevant to efforts against hostile non-State actors. 33 

The majority of State practice cited in opposition to the Wall Court's work 
showcases measures of self-defense alleging varying degrees of host-State support 
to the attacking non-State actor. Yet not all purported exercises of self-defense have 
included such links. In 1976, a series of South African intrusions into the territory 
of neighboring States to pursue non- State actors were distinct from other exercises 
in this important respect. South Africa asserted a right of self-defense absent such 
State involvement. 34 The South African government conceded that the States from 
which rebels operated were not complicit; however, it defended its territorial intru- 
sions as justified in self-defense to continue its pursuit of rebel forces. 35 While the 
Security Council condemned 36 South Africa's acts and appeared to denounce the 
"hot pursuit" 37 theory of self-defense, disapproval may be attributable in greater 
part to the racist policies underlying these measures than to the legality of the 
theory itself. 

Ultimately, the most convincing effort to reconcile the Wall Court's account of 
self-defense with its critics' competing claims emphasizes that the Israeli- Palestinian 
situation involved no transnational interactions. That is, owing to Palestine's fail- 
ure to attain statehood, the Wall advisory opinion might be read not to reach the is- 
sue of valid State responses to non-State actors' armed attacks that originate from 
another State's territory. One might then plausibly cabin the opinion to situations 
not involving State actors or their territories, leaving open the issue of exercises of 
self-defense against non-State actors operating from sovereign territory. Yet the 
critique persists that a stronger analytical effort by the Court to identify the opera- 
tive legal framework would have included an exploration of customary norms reg- 
ulating the exercise of self-defense against purely non-State actors. 

Only a year after the Wall advisory opinion, the ICJ had an opportunity to revisit 
and clarify the issue of transnational self-defense against non-State actors. In 
Armed Activities on the Territory of the Congo, Uganda defended its military opera- 
tions against rebel groups operating from eastern Democratic Republic of the 
Congo (DRC). 38 Uganda offered two justifications for the attacks, both grounded 
in self-defense. First, it argued that DRC support for anti-Ugandan rebels triggered 
Uganda's right of self-defense, including the use of force on DRC territory. Second, 

63 



Low-Intensity Computer Network Attack and Self-Defense 

and alternatively, Uganda argued that the DRC's inability to control the territory 
from which anti-Ugandan rebels operated permitted Ugandan measures in self- 
defense on DRC territory. 39 Thus in some respects, the Ugandan claims were not 
unlike the earlier South African arguments rejected by the Security Council. 

Surprisingly, the Armed Activities Court did not rule on the lawfulness of 
Uganda's self-defense against non-State actors. Instead, the Court declined to ac- 
cept Uganda's characterization of the operations as defensive in nature, noting that 
the invasion far exceeded in scale and scope what would have been necessary to 
counter the rebel threat. 40 Curiously, the Court skipped over the traditional thresh- 
old analysis of whether the right to self-defense had been activated, reaching in- 
stead the issue of whether the use of force in question constituted a proportionate 
response. Thus the case left unaddressed the issue of States exercising self-defense 
in the context of transnational operations against non-State actors. 

Once again, the Court attracted criticism for its failure to elaborate on the issue 
of self-defense against non-State actors. 41 In particular, critics argued the Court 
should have used the Armed Activities case to better explain how self-defense doc- 
trine relates to issues of State responsibility generally. To some members of the 
Court, the opinion missed an opportunity to clarify the distinct but related stan- 
dard of State responsibility for non-State actors' conduct within sovereign terri- 
tory, a matter left uncertain by a prior decision but closely related to the exercise of 
self-defense. 42 

In 1986, the Court's Nicaragua judgment announced a standard for attributing 
non-State actors' conduct to States for purposes of self-defense. 43 The Nicaragua 
Court ruled that States exerting "effective control" over non-State actors launching 
armed attacks within or from their territories were subject to lawful measures in 
self-defense from victim States. 44 However, the Nicaragua effective control stan- 
dard did not fare well in practice, leaving too much ambiguity to operate as a work- 
able limit on States' exercise of self-defense. 45 Later, a separate UN-created court, 
the International Criminal Tribunal for the former Yugoslavia, offered a com- 
peting standard for State responsibility. 46 The Armed Activities judgment, how- 
ever, did little to clarify or adapt the Nicaragua standard. The case offers no 
substantive clarity concerning the level of State support for hostile non-State actors 
that would give rise to a lawful exercise of self-defense by a victim State. 

Critics of the Armed Activities decision also point to evidence of States' views on 
self-defense in response to non-State actors. Many regard the Security Council res- 
olutions and the North Atlantic Treaty Organization (NATO) response to the 9/11 
terrorist attacks on the United States as authoritative in this respect. 47 Unquestion- 
ably sufficient in intensity and effect to qualify as armed attacks, 48 the 9/11 attacks 
prompted both the Security Council and NATO explicitly to recite Charter-based 

64 



Sean Watts 



self-defense as a lawful response. Condemning the attacks as international 
terrorism, as well as threats to international peace and security, UN Security Council 
Resolutions 1368 49 and 1373 50 each reaffirmed the United States' right to exercise 
self-defense. Recalling efforts to muster Security Council support, William 
Howard Taft IV, then State Department Legal Adviser, recalls, "[We] had no diffi- 
culty in establishing that we had a right to use force in self-defense against Al- 
Qaeda and any government supporting it." 51 With similar dispatch, NATO in- 
voked, for the first time, Article 5 of its organizing treaty with references to collec- 
tive self-defense, as well as the UN Charter self-defense regime. 52 The legal effect of 
invoking Article 5 was to regard 9/ 1 1 as an attack upon all NATO member States. 53 

Clearer political statements in favor of applying self-defense doctrine to attacks 
by non-State actors are difficult to imagine. Scholars have seized on the 9/11 Secu- 
rity Council resolutions in particular as definitive State support for the exercise of 
self-defense under the Charter against non-State actors. 54 

Yet the legal import of the 9/11 political responses is debatable. 55 Security Coun- 
cil resolutions undoubtedly wield legal force. Under the Charter, States are bound 
to carry out the provisions of resolutions. 56 However, the extent to which they in- 
fluence and shape legal doctrine or operate as independent legal precedent is ques- 
tionable. 57 On one hand, Security Council voting presents States an opportunity to 
voice positions concerning resort to self-defense. 58 Discussion preceding votes on 
resolutions frequently generates detailed expression of opinio juris on issues con- 
cerning resort to self-defense. 59 

On the other hand, debate and voting are axiomatically political manifestations, 
reflecting economic, security and strategic self-interest as much as deliberate and 
principled legal thought. Use or threat of the veto by permanent members fre- 
quently prevents resolutions from reflecting comprehensive, majority State views 
on legal issues. Further undermining claims to status as law, Security Council prac- 
tice with respect to self-defense lacks uniformity or regard for precedent. Examin- 
ing Security Council self-defense practice, Professor Franck identified strong 
patterns of inconsistency. 60 Franck observes, "The actual practice of the UN organs 
has tended to be more calibrated, manifesting a situational ethic rather than doctri- 
naire consistency either prohibiting or permitting all [self-defense] actions." 61 

As promised, the picture of self-defense against non-State actors remains cloudy 
despite codified law, abundant State rhetoric and significant proliferation in attacks. 
The ICJ seized neither of two recent opportunities to elaborate on the conditions 
under which self-defense operates in States' interactions with non-State actors. 
Nor did the Court on either occasion see fit to account for widely recognized State 
practice in the area. Thus, a widening rift has become apparent between positive 



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Low-Intensity Computer Network Attack and Self-Defense 

law and the Court's work on the one hand and State practice on the other. Unfortu- 
nately, this ambiguity is not unique to the issue. 

The Threshold of "Armed Attack" 

The UN Charter identifies "armed attack" as the event which gives rise to Member 
States' right of self-defense. 62 Accounts of the Charter's diplomatic conference in- 
dicate the term provoked considerable back-channel maneuvering. 63 Although 
still subject to substantial interpretation, the term "armed attack" is thought to of- 
fer a comparative advantage over vague customary notions of self-defense. In the 
words of Professor Stone, "armed attack" at least limits reference to "an observable 
phenomenon against which [the victim State] reacts." 64 

The prevailing view characterizes armed attacks as a subset of violent acts 
within a broader grouping of acts that qualify as uses of force. 65 Though perhaps 
tempting, drawing precise parallels between the Article 2(4) prohibition on "use 
of force" and the Article 5 1 threshold of "armed attack" is flawed. 66 The modifier 
"armed" appears intended to eliminate lower levels of force from consideration. 
Mere coercion does not activate the right of self-defense, 67 if such activities even 
qualify as uses of force. 68 Classically understood, "armed attack" envisions uses of 
force producing destruction to property or lethal force against persons. 69 As Pro- 
fessor Stone asserts, the term also ensures a level of definition to prevent aggres- 
sors from fraudulently pleading self-defense to excuse offensive operations. 70 
Graphically portrayed, one might imagine a Venn diagram with a large circle en- 
compassing uses of force and a smaller circle within representing armed attacks. 
Thus, all armed attacks constitute uses of force, whereas not all uses of force rise to 
the level of armed attack. 

Again, the ICJ has weighed in. In the Nicaragua case, the Court suggested the 
threshold of armed attack involved not merely destruction or invasion but also 
consideration of "scale and effects." 71 In addition to armed invasion by regular 
forces, the Court observed, "the sending by a State of armed bands to the terri- 
tory of another State" to conduct similar armed activities would classify as an 
armed attack. 72 It is important to note that the Court did not examine instances 
where such bands carried out activities not involving arms or failing to produce 
destructive consequences usually associated with armed activity. Rather, the Court 
distinguished invasions from mere assistance "in the form of the provision of 
weapons or logistical or other support." 73 While conceding that such activities 
perhaps constituted a threat or use of force, perhaps implicating Article 2(4), the 
Court concluded routine logistical activities would generally not give rise to the 
right of self-defense. 74 



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The practical significance of the Charter's — and the Court's — distinction be- 
tween mere uses of force and more extreme armed attacks is a gap in response 
structure. 75 The plainest understanding of the distinction concludes that while 
States may respond to armed attacks with force, including armed measures of 
self-defense, States may not respond with armed violence or even force to mere 
uses of force. That is, the Charter's Article 2(4) general prohibition on the use of 
force by States continues to operate, even against States that have suffered an un- 
lawful threat or use of force. Only armed attack frees a State from the prohibition 
on the use of force. In this respect, Article 51 operates as an incomplete exception 
to the prohibition on the use of force. The prevailing view holds that the Charter 
permits States to respond to mere uses of force only with measures of self-help 
not themselves rising to a use of force. 76 Thus the Charter reserves reciprocal uses 
of force in response to mere violations of Article 2(4) short of armed attack to the 
Security Council's response regime. 77 

While seemingly a sound textual interpretation, the gap has not aged well. Cer- 
tainly, removing States' authority to respond with unilateral force to all but the 
most serious and violent events is in keeping with the spirit and intent of the 
Dumbarton Oaks drafting conference of 1945. Yet time and events have proved the 
Security Council unable to respond to many apparent violations of Article 2(4), 
leaving victims of acts falling within the gap either hostage to the flawed Security 
Council regime or faced with violating the letter and spirit of the Charter. 78 The gap 
proves particularly troubling to States underrepresented, either themselves or by 
allies, at the Security Council. 

The recurring issue of so-called frontier incidents and self-defense illustrates 
well the contours of the ICJ's struggle to reconcile practice with text. Typically, 
frontier incidents are small-scale skirmishes of limited duration between States' 
armed forces. Christine Gray describes frontier incidents as "the most common 
form of force between States." 79 The ICJ has endorsed the legal concept of a fron- 
tier incident as falling short of "armed attack." In the same passage of the Nicara- 
gua case cited above to describe the intensity element of "armed attack," the Court 
distinguished an armed attack from "a mere frontier incident." 80 Yet the Court of- 
fered almost no elaboration and did not revisit the issue in its factual examination 
of the parties' respective territorial violations. Critics of the frontier-incident dis- 
tinction disparage its apparent toleration of "protracted and low-intensity con- 
flict." 81 Still, there are signs that important State actors accept frontier incidents as 
part of the spectrum of uses of force outside armed attack and thus not giving rise 
to a broader exercise of self-defense, confirming the Charter's response gap. 82 

The gap theory is not a universally held view. 83 In a separate opinion to the Oil 
Platforms judgment, Judge Simma called the gap theory into question. 84 He posited 

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Low-Intensity Computer Network Attack and Self-Defense 

that lawful responses to armed force should generally track the acts that provoke 
them. While he agreed that only force amounting to armed attack opened the 
door to full-fledged self-defense, he argued that States are permitted to respond to 
force short of armed attack with "defensive military action 'short of full-scale 
self-defence." 85 Rather than embrace the gap theory's all-or-nothing approach to 
defensive responses to force, Judge Simma advocated a spectrum of proportional- 
ity. In some ways like the Court's approach to the Ugandan operations in Armed 
Activities, Judge Simma would seemingly supplant the Charter's "armed attack" 
threshold with a floating scale of proportionality of action in States' international 
relations. It seems his standard is satisfied so long as a State's response to a use of 
force matches the intensity, scale and duration of the force suffered initially. In- 
terestingly, a passage of the Nicaragua case seems to reinforce Judge Simma's 
view, supporting proportionate countermeasures in response to uses of force not 
amounting to armed attack. 86 

A further response to the gap attempts to shrink the conceptual space between 
the use of force and armed attack by simultaneously raising the threshold of acts 
qualifying as uses of force under Article 2(4), while lowering the bar for acts quali- 
fying as armed attack under Article 51. 87 Returning to the previously imagined 
Venn diagram, this approach would shrink the circle representing use of force 
while expanding the circle representing armed attack. Such understandings mini- 
mize, if not eliminate, the situations in which States are unable to respond to uses 
of force unilaterally while greatly increasing the realm of situations in which they 
may employ force in self-defense. 

The gap-shrinking effort and Judge Simma's approach may be useful as efforts 
to sustain the relevance of the Charter to modern international relations. Casual 
reviews of State practice seem to support them. Yet gap shrinking surely demands a 
better explanation of the distinct phrasing of the Charter's respective articles. And 
ultimately, in some sense, the gap-shrinking approach appears merely to shift in- 
terpretive debate back to the meaning of the term "armed attack." 

In this way, gap shrinking makes no contribution to resolving the persistent am- 
biguities surrounding "armed attack," namely the intensity, duration and scope 
components of the term. And while Judge Simma's approach appeals to intuitive 
senses of equity and self-preservation, it is similarly difficult to reconcile with the 
letter of the Charter's concessions of sovereignty, no matter their practical flaws. 
Despite their utilitarian merits, neither approach is particularly satisfying as a mat- 
ter of textual interpretation, setting up a conflict between principled interpretation 
and realistic practice in the law of self-defense. 

Ultimately, perhaps even committed positivists must entertain a certain 
amount of sympathy for views that tolerate a broader range of coercive or forceful 

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responses from State victims of unlawful uses of force. New operational norms, not 
precisely consistent with the formal security regime of the Charter, may have 
emerged through subsequent State practice. It has been argued, "The Charter is not 
a commercial contract but a constitution." 88 But surely some level of determinism 
is appropriate, just as it is surely true that the bargain struck by States through the 
Charter reflected meaningful cessions of sovereignty. 

Bearing in mind the contestable legal issues in self-defense, what is happening 
meanwhile in cyber conflict? 

III. The Estonian and Georgian Incidents 

Because of the highly classified nature of States' CNA practices and their past infre- 
quency, the earliest legal analyses of CNA resorted to hypothetical or speculative 
events. Considering how few practical examples these writers had to work with, 
early forecasts of the operation of self-defense in CNA, if partly speculative, are 
nonetheless impressive. 89 Examples of CNA have since proliferated, providing 
ready grist for the mills of cyber security and cyber law analysts alike. Details of two 
recent events in particular, the 2007 Estonian and 2008 Georgian cyber incidents, 
have guided a great deal of discussion and policy. 

Estonia 2007 

In April of 2007, after relocating a Soviet-era World War II memorial from its 
prominent place in the capital city of Tallinn, Estonia suffered uncharacteristically 
violent protests by ethnic Russians. 90 Immediately afterward, a series of distributed 
denial of service (DDoS) attacks swept Estonian government and banking 
websites. 91 Lasting approximately one month, the DDoS 92 attacks prevented access 
to and defaced government websites and halted government e-mail traffic. 93 The 
DDoS attacks also interrupted Estonian Internet banking for portions of several 
business days. 

The perpetrators of the DDoS attacks found a target-rich environment in Estonia. 
More than any other nation of its size, Estonia reflects an information systems soci- 
ety. 94 Wireless Internet, e-banking and web-based government services abound in 
Estonia. Internet access is available in a remarkable 98 percent of Estonian terri- 
tory. 95 Home to the popular web-based voice call service Skype, Estonia boasts high 
rates of personal Internet usage and claims to have been the first country to con- 
duct Internet elections. 96 Over 500,000 people, nearly half its citizens, have used 
government e-services. 97 

At its outset, the 2007 Estonian event generated strong emotional reactions. Es- 
tonian politicians immediately compared the incident to an invasion and to 

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Low-Intensity Computer Network Attack and Self-Defense 

conventional military activity. 98 However, quickly after the true nature of the inci- 
dent became apparent, Estonian authorities realized that by accepted metrics the 
event did not amount to armed attack. Although widespread within Estonia and of 
nearly a month's duration, the event produced chiefly economic and communica- 
tions disruptions. Public confidence in government and electronic services likely 
suffered as well, but certainly not on the scale or in the nature anticipated by armed 
attack. Additionally, because the DDoS attacks transited as many as 178 coun- 
tries," Estonia never traced responsibility for the events to another State, despite 
lingering suspicion of Russian government involvement. 100 In the final analysis, 
Estonia attributed the disruptions to patriotic teams of ethnic Russian hackers, 
only loosely affiliated with one another. 101 

The Estonian response seems to confirm that an armed attack did not occur as 
well. Estonian countermeasures were entirely passive in nature. Estonian techni- 
cians replied largely by expanding network bandwidth to diffuse the effects of the 
DDoS attacks. 102 The government focused its later responses on criminal investiga- 
tions and also developing its domestic penal law to better account for cyber terror- 
ism and intrusions. 103 Estonia seems at no point to have given serious thought to 
resorting to measures of self-defense under either the Charter or the NATO Wash- 
ington Treaty. 104 Nor, given its difficulties attributing the attacks, does it seem it 
could have. 

The Estonian cyber incident undoubtedly sounded an alarm for the interna- 
tional community. But while the event provoked calls for cooperative cyber foren- 
sics and criminal law enforcement, very little of the incident generated lessons or 
insights with respect to self-defense. Legal analyses conclude almost unanimously 
that the event did not give rise to the right of self-defense. 105 Only a year later, a 
similar incident would sound the same alarm and inspire comparable discussion, 
yet would immediately shed no greater light on self-defense and CNA. 

Georgia 2008 

Although in a de facto sense independent since 1991, the Caucasus region of South 
Ossetia has remained all the while part of the Republic of Georgia in a legal sense. 
In 2008, after an increase in Ossetian separatist activity, Georgia attempted to reas- 
sert control of the region. 106 These operations provoked a swift and militarily deci- 
sive intervention by Russian air and armored forces. 107 

Before the physical invasion, Georgian government websites suffered a series of 
DDoS attacks. 108 The Georgian presidential website was out of service for more 
than 24 hours, then experienced manipulation including defacement of the Presi- 
dent's image. 109 By the date of the Russian physical invasion, websites belonging to 
the Ministry of Foreign Affairs, Ministry of Defense, the National Bank and several 

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Sean Watts 



Georgian news outlets had already suffered DDoS attacks. 110 The day following the 
invasion, Georgia's largest bank was also struck. All told, the DDoS operations con- 
tinued for nearly a month, long outlasting kinetic hostilities and even postdating a 
ceasefire. 111 

In terms of information technology, Georgia was no Estonia. In fact, the rela- 
tively underdeveloped Georgian information infrastructure may have mitigated 
the impact, economic and otherwise, of the incident. 112 While Georgia's highly 
concentrated distribution nodes simplified the attackers' task, Georgians did not 
rely heavily on government web-based or e-services. The greatest impact of the in- 
cident appears to have been reputational and related to restricting information 
flow between the government and its citizens during the invasion crisis. 113 

For purposes of characterizing the Georgian cyber incident as an armed attack, 
coincidence with the Russian physical invasion complicates legal analysis. The in- 
cident preceded, or more likely constituted part of, a conventional military inva- 
sion that undoubtedly qualified as an armed attack. 114 Yet isolated from the 
succeeding kinetic measures, the cyber aspects of the Georgian incident were of 
minimal scope and intensity. At its worst, the cyber incident disrupted banking ac- 
tivities and limited communications between the Georgian government and the 
population. No loss of life, physical injury or destruction of property was directly 
attributable to the cyber operations. Perhaps the most interesting legal issues aris- 
ing from the Georgian cyber incident concern timing of self-defense and whether 
the cyber disruptions could have been interpreted as an indication of imminent 
armed attack. 

But the conclusions one can draw regarding the exercise of self-defense in the 
realm of pure cyber operations are limited. Similar to the Estonian episode, Geor- 
gia never identified conclusive evidence of Russian government responsibility for 
conduct of the disruptions. Also, the cyber incidents alone do not seem to have 
risen to the level of armed attack. Had the physical invasion not followed, the Geor- 
gian cyber incidents would likely have left Georgia in much the same place as 2007 
Estonia: inconvenienced (though comparatively less so), vulnerable, angry and 
embarrassed. And while, at first impression, neither incident appears useful to 
elaborate on the details of self-defense doctrine, each maybe a useful foreboding of 
future trends in CNA likely at some point to implicate self-defense. 

While neither incident reached the threshold of armed attack, the costs of each 
in terms of security seem real. Classifying these events as mere communications 
disruptions or interference seems not to capture the function and importance of 
computer networks in the information age. 115 If the Estonian and Georgian DDoS 
attacks did not cripple either State or produce damage to property or persons, they 
certainly reduced public confidence and exposed critical vulnerabilities. The chaos 

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Low-Intensity Computer Network Attack and Self-Defense 

and confusion of the Georgian cyber attacks may even have facilitated or set favor- 
able conditions for Russian physical attacks. After these incidents, one might fairly 
ask whether failure to produce physical damage or injury really justifies placing 
these incidents on the lower end of a conflict spectrum and whether such events are 
aberrations or indications of the future of cyber conflict. One might also seriously 
ask whether more powerful States would have exercised similar restraint. 

IV. Low-Intensity Cyber Strategy 

A growing strand of cyber scholarship suggests the Estonian and Georgian inci- 
dents are harbingers of future cyber conflict. Within a broader spectrum of cyber 
attack, strategists highlight low- intensity cyber warfare as an increasingly prevalent 
and threatening form of conflict. By exploiting intrinsic tactical advantages, as well 
as weaknesses in Western military thinking, low-intensity CNA have great poten- 
tial to abuse narrowly conceived models of conflict to the advantage of cyber insur- 
gencies and States. Failing to perceive and treat the threats posed by low-intensity 
attacks hampers targets' long-term security and plays into the hands of the at- 
tacker. This section briefly explains how such attacks not only exploit tactical and 
strategic advantages but may also leverage the legal gaps identified previously. 

Military doctrine commonly uses a conflict spectrum keyed to levels of 
violence. 116 Along the cyber variant of the spectrum, low-intensity CNA distin- 
guish themselves from their high-intensity counterparts in two important respects. 
First, low-intensity CNA add a dimension of concealment not apparent in high- 
intensity CNA. Specifically, in addition to masking the identity of the attacker, 
low-intensity CNA conceal their effects. They accomplish this largely through 
restraint in scale and scope. In the attacker's ideal scenario, the victim of low- intensity 
CNA is unaware of the damage to the target system. In other words, successful low- 
intensity CNA never awaken a sleeping giant. 

Low-intensity CNA also differ from the majority of high-intensity CNA in their 
ability to frustrate correlation. In the event they are detected, successful low-intensity 
CNA should appear to the victim as unrelated or isolated events. ! 1 7 Selecting varied 
targets, spreading effects and timing attacks in apparently random sequences pre- 
vent the target from perceiving the larger-scale, more threateningly coordinated 
effort of the attacker. Inability to correlate reduces the likelihood of response by the 
victim, despite cumulative reductions in capacity and efficiency. The analogy to 
the "death by a thousand cuts" is apt. 118 

In addition to being distinct from other CNA, low-intensity CNA are tactically 
and strategically attractive for several reasons. Tactically, low-intensity CNA are 
less likely to provoke debilitating responses from targets. Because the target is often 

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Sean Watts 



unaware the attack has happened at all, low-intensity CNA may provoke no re- 
sponse. Even if the victim becomes aware of the attack's effect, the isolated damage 
may be so limited that a response is simply not worthwhile. As a kinetic 
counterexample, the immense scale of the Al-Qaeda 9/11 attacks forfeited this tac- 
tical advantage, greatly compromising the organization's long-term capacity. 119 
Operating below the target's response threshold, low-intensity attacks avoid this 
blunder, simultaneously enjoying relative impunity and preserving the utility of 
the attacker's cyber tools for future operations. 

Strategically, low-intensity CNA may also prove a wise effort. Low-visibility, 
low- intensity CNA may be effective to retard a target's economic, social and tech- 
nological development. Such developmental constraint might easily yield long- 
term payouts in strategic competition. In a struggle for technological and military 
supremacy, even a slight advantage in efficiency or conversion capability may 
prove decisive. 120 

Low-intensity CNA are also highly feasible. In general, cyber operations are often 
far less expensive than traditional military operations. 121 The technology required 
is widely available and relies to a great extent on automation rather than person- 
nel. 122 Low- intensity CNA compound these advantages that CNA enjoy as a gen- 
eral matter. As one theorist observes, "You can do a simple attack against a lot of 
computers. Or you can do a sophisticated attack against a few computers. But it is 
really hard to do a sophisticated attack against a lot of computers, especially an at- 
tack that would achieve a meaningful military objective." 123 

Further enhancing feasibility, low-intensity CNA permit incorporation of unaf- 
filiated or even unsophisticated actors. Non-State actors such as cyber militias in- 
creasingly populate cyberspace, offering services for profit or political sympathy. 124 
Enlistment maybe as simple as offering a personal computer, Internet access and 
a web browser. 125 "Hacktivist" involvement in low- intensity CNA not only diffuses 
effects but also strengthens efforts to launder the sponsor's identity as the source of 
attack. 126 A victim might easily misinterpret well-masked hacktivist attacks as un- 
related acts of vandalism rather than a concerted effort to degrade capacity or 
security. 

In addition to these very practical advantages, advocates of low- intensity CNA 
base their arguments on flaws in military theory. Modern Western military 
thought has long rested on bifurcations of peace and war, notions of military and 
civilian separation. 127 Classic military theory reserves military action to escalations 
of hostile conduct between parties above recognized thresholds of violence. 128 Mil- 
itary legal disciplines reinforce the war-peace and military- civilian distinctions. 
The law governing the conduct of hostilities, or jus in hello, captures the military- 
civilian bifurcation through the targeting principle of distinction. 129 Similarly, the 

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Low- Intensity Computer Network Attack and Self-Defense 

law of war reflects the war-peace distinction through pervasive chapeau or 
application threshold provisions as prerequisites to operation of the law. 130 The 
vast majority of the positive jus in bello only operates in armed conflict between 
States. Recalling the jus ad helium outlined in section I, one detects a similar bipolar 
assumption with respect to hostilities and self-defense. Under the Charter regime, 
either armed attack has occurred, unleashing the use of force, or something short 
of armed attack has occurred, restricting responses to peaceful means short of 
force. 

Cyber theorists contrast these Western traditions with notions of conflict that 
understand military action as part of a general and continuous strategic competi- 
tion between powers rather than as an exception to peace. 131 If Western powers re- 
gard as legally extinct Clausewitz's characterization of war as a continuation of 
politics, competing views continue to carry Clausewitz's torch. Consistent with 
this tradition, work by two Chinese People's Liberation Army officers urges an ap- 
preciation of an unrestricted understanding of warfare extending into informa- 
tional, commercial, currency and media realms. 132 

Cyber conflict theorists argue that Western military thought's blind spot for un- 
conventional and low-intensity hostilities renders States susceptible to abuse. Fail- 
ing to perceive pinprick attacks as part of an enemy's expanded conception of 
conflict frustrates correlation and delays defensive efforts. Actors acquainted with 
States' military response thresholds and willing to extend their activities into tradi- 
tionally civilian realms, such as strategic communication, currency exchange, trade 
and media, gain crucial strategic and tactical advantages. Low-intensity CNA are 
ideally suited to pursuing such advantages. 

Finally, low-intensity CNA are attractive because they leverage seams in devel- 
oped States' national security response structures. Particularly if directed at private 
enterprise, low-intensity CNA may successfully evade government computer net- 
work defenses. Moreover, private sector victims may not report attacks to public 
sector authorities to preserve investor and consumer confidence. Industries con- 
cerned with maintaining client privacy or trade secrets may be especially inclined 
to underreport low-intensity CNA. 

The operational environment of cyberspace may not be the only incentive to 
low-intensity non-State actors' tactics. The law may incentivize such operations as 
well. Cyber operations just below the "use of force" threshold or even in the space 
between "use of force" and "armed attack" become attractive considering views 
that limit States' lawful responses to the latter. The Wall advisory opinion's view 
that self-defense is irrelevant to attacks by non-State actors surely fosters a sense of 
impunity or insulation from retribution or response. For example, one might 
imagine a protracted and diffuse campaign of cyber frontier incidents, designed to 

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Sean Watts 



harass and frustrate a target but also designed to remain below the legal threshold 
for measures in self-defense. If economic, communications and psychological ef- 
fects, no matter how profound, don't trigger the right to respond with force, much 
less the armed attack threshold for use of self-defense, CNA seem a particularly apt 
means for imposing such effects to harm or at least harass and weaken States. This 
is especially the case if the strict legal view that limits the use of force to "armed 
attack" holds true. 

In the end, coupled with emerging cyber doctrine, the Estonian and Georgian 
incidents might take on important new meaning. The arguments for low- intensity, 
low- impact cyber operations suggest they may no longer be the realm of criminals 
and economic saboteurs but rather deliberate strategies to influence the interna- 
tional security environment. Informed by a broader conception of cyber strategy 
and conflict theory, the Estonian and Georgian incidents might indeed mean 
something more to States and implicate self-defense and security in ways not obvi- 
ous at the time of each, with important implications for the Charter's doctrine of 
self-defense. States may no longer be able to afford to treat such incidents as mere 
criminal acts or communications disruptions. States may very well look to mea- 
sures in self-defense as a response to such events, notwithstanding their failure to 
comport with traditional understandings of "armed attack." The implications for 
the future of the UN Charter self-defense regime maybe grim. 

V. Conclusion: The Impact of Low-Intensity CNA on the Self-Defense 

Legal Regime 

Scholars have built impressive careers predicting the demise of the Charter's security 
regime. 133 In 1970, Professor Thomas Franck argued that the Article 2(4) use of 
force regime mocked States from its grave. 134 He asserted that new forms of attack 
made the notions of war on which the Charter was based obsolete, while State prac- 
tice eroded States' mutual confidence in the system. 135 Addressing self-defense, 
Franck presciently identified wars too small and wars too large to fit within Article 
51. 136 Ultimately, Franck indicted incongruence between the norms of the interna- 
tional security system and the national interests of States as the perpetrator of his 
imagined legicide 137 — perhaps the very same concerns that motivated the Senate's 
question to General Alexander. 138 

So, are the laws regulating resort to force, and specifically self-defense, out of 
synch with planned cyber capabilities and strategies? Or more precisely, does the 
Charter's self-defense doctrine leave States adequate authority to respond to the 
full range of CNA threats they face? 



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Low-Intensity Computer Network Attack and Self-Defense 

The answer depends, in large part, on the version of self-defense one adopts. As 
section II demonstrated, despite a universally adopted codification and decades of 
jurisprudence and State practice, the doctrine of self-defense remains highly inde- 
terminate. If General Alexander expressed satisfaction with the state of the law, his 
was likely a confidence grounded in a very broad and permissive understanding of 
the doctrine. Informed by views that regard the Charter's response gap skeptically 
or seek to define it away, one might indeed express satisfaction with the range of re- 
sponses available to State victims of CNA. Espousing a similar view, the US State 
Department Legal Adviser recently offered a vote of confidence in self-defense 
doctrine as it relates to lethal overseas counterterrorism efforts. 139 

Yet such permissive views of self-defense suffer the textual shortcomings of 
their forebears. 140 Christine Gray asserts that States rarely speak of self-defense in 
purely legal terms. 141 Her evaluation is difficult to square with claims that in the 
post-Charter world States defend nearly all uses of force as self-defense. 142 Yet the 
future may prove Gray's observation increasingly accurate. Recent State expres- 
sions appear particularly vague and open-textured, grounded in notions of in- 
stinct, rights of survival and natural law rather than positivist models of conflict 
regulation. 143 Increasingly, it seems States have resurrected pre-Charter notions 
that self-defense includes all means necessary for self-preservation against all 
threats. Practice is offered to the exclusion of positivist expressions of law, rather 
than as a vehicle for elucidating or understanding it. Even committed international 
law sovereigntists must detect discomfiting, pre-Charter realist tones. 

On the other hand, if one adopts the narrower view of self-defense, including 
the apparent textual response gap between use of force and armed attack, the gen- 
eral's proffered mismatch between law and capacity may indeed be real. Particu- 
larly with respect to low-intensity CNA, State victims appear hostage to law that 
would deny resort to proportionate countermeasures and restrict effective action 
to a security regime paralyzed by politics. 

What emerges appears to be a choice of threats. Either one accepts a real threat 
to the positive jus ad heliums claim to law, or one accepts very real threats to States' 
security as a trade-off for preserving legal idealism. Neither reflects well on the fu- 
ture of the law. Each constitutes a mismatch in its own sense. 

If past predictions of the demise of the Charter's security regime, such as 
Franck's, have proved exaggerated, 144 low-intensity CNA may vindicate them yet. 
As Franck's critics point out, the international security environment of the twentieth 
century likely profited from the Charter's limits through undetectable instances of 
restraint. 145 The argument claims the Charter regularly influenced decisions to re- 
frain from resort to force but unlike decisions to use force, restraint leaves little in 



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the way of observable evidence. Yet the prospect of low- intensity CNA is likely to 
change the calculus of these decisions. 

With these cheap, anonymous and effective weapons, States find a greatly al- 
tered international security game. The low barriers to entry into CNA, and particu- 
larly low- intensity CNA, greatly increase the number of potential players. 146 Just in 
terms of frequency of occurrence, the number of instances in which States will be 
called upon to evaluate whether resort to force or measures in self-defense is justi- 
fied or necessary increases. 

Further, as the Estonian and Georgian episodes still suggest to many, non-State 
actors may be effective proxies for States in CNA. It appears non-State actors will 
be a persistent feature of future CNA. And for non-State actors operating on their 
own behalf, modern hostilities offer few levelers on the order of CNA. CNA are tre- 
mendous force multipliers and are abundantly available. Low- intensity CNA offer 
the potential for catastrophic effects against asymmetrically developed and 
resourced States. Conversely, many non-State actors are simply retaliation- and 
even deterrence-proof, offering defenders little in the way of targets. 

Thus, low-intensity CNA not only increase the population of attackers but also 
the pool of potential defenders. This is true in two senses. First, as the Georgian 
event shows, even States with rudimentary information systems capacity present 
ripe targets for CNA. More States present themselves as potential targets of hostile 
acts, increasing in absolute terms the opportunity and likelihood that hostilities 
will erupt. Second, more States are likely to participate themselves in CNA for the 
same reasons that more non-State actors are. Thus in a CNA security environment, 
more States will possess means to respond to attacks or, more important, to events 
short of armed attack yet sufficiently disruptive or annoying to provoke a hostile 
response. 

On a related note, and equally disruptive to restraint in the exercise of self- 
defense, CNA may permit more States to "go it alone." As a more attainable 
means of self-defense, CNA may free States from reliance on collective security 
arrangements. In contrast to the twentieth century's bipolar security environ- 
ment, CNA's low barriers to entry may lead to a multipolar system of lone actors. 
Decisions whether to resort to self-defense will lack the temperance and restraint 
that collective security arrangements have offered. Thus, low-intensity CNA may 
topple preexisting vertical arrangements of States into a level or horizontal array 
of power. 

Finally, CNA rearrange the cast of actors in the security environment in a more 
literal way. CNA render geography largely meaningless. States previously insulated 
from armed attack by distance or terrain enjoy no such benefits in cyberspace. Bor- 
ders and neighbors do not determine one's cyber security. Rather, in an ironic 

77 



Low-Intensity Computer Network Attack and Self-Defense 

sense, susceptibility to attack may be a function of the extent to which a State relies 
on the very information technology that is targeted. As information systems prolif- 
erate the target environment becomes richer, increasing the frequency with which 
States must make decisions about exercising self-defense. 

The preceding factors suggest critical consequences for the viability of self- 
defense doctrine. As low-intensity CNA increase the pool of defenders, attackers 
and targets, opportunities for disparate or even idiosyncratic views or approaches 
to self-defense will also proliferate. Low-intensity CNA will generate conflicting 
accounts of self-defense doctrine with respect to applicability to non-State actors 
and the "armed attack" threshold, as well as other issues such as anticipatory and 
collective self-defense. It is ominously clear that the phenomena that prompted 
Franck to pronounce the death of the Charter security regime are not merely also 
present in CNA; they are present in far greater degrees. 

Few of the developments, legal or technical, outlined in this article portend a 
stable or effective international self-defense regime. Rather than evince satisfaction 
with the bargain struck in 1945, emerging views on self-defense, such as that ex- 
pressed by General Alexander, likely reflect altered understandings of limits on 
States' freedom of action. The effects on the integrity and viability of the law of self- 
defense are compounded if one extrapolates the opportunity to interpret and apply 
self-defense doctrine to the vast cast of actors, State and non-State, in cyberspace. 
While surely motivated in part by legitimate perceptions of very real threats, these 
views are highly susceptible to producing a chaotic, dangerous and multipolar se- 
curity environment. Faced with the daunting prospect of persistent low-intensity 
CNA, ruling views on self-defense may quickly become in fact entirely untethered 
from the Charter's security regime. Understood in light of emerging low-intensity 
CNA doctrine, the Estonian and Georgian events become highly relevant to the de- 
velopment of self-defense law. One can easily imagine, and might already conjure, 
a law of self-defense that resorts to the Charter's regime in name only, revealing it 
to have been as Stone posited, one of many "vain attempts to abolish power." 147 

Notes 

1 . Initial orders to create the command date to mid-2009. See Ellen Nakashima, Gates Cre- 
ates Cyber-Defense Command, WASHINGTON POST, June 24, 2009, at A08, available at http:// 
www.washingtonpost.com/wp-dyn/content/article/2009/06/23/AR2009062303492.htmI. Appro- 
priately enough, information on Cyber Command, often referred to as CYBERCOM, is available 
from a US Department of Defense website. See http://www.defense.gov/home/features/2010/0410 
_cybersec (last visited Sept. 20, 2010). 



78 



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2. William J. Lynn III, Introducing U.S. Cyber Command, WALL STREET JOURNAL, June 3, 
2010, § A, at 15, available at http://online.wsj.com/article/SB100014240527487048756045752 
80881128276448.html. 

3. Ellen Nakashima, Cyber Command Chief Says Military Computer Networks Are Vulnerable 
to Attack; U.S. military networks in war zones could be targeted, Alexander says, WASHINGTON POST, 
June 4, 2010, at A02, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/ 
06/03/AR2010060302355.html. 

4. Advance Questions for Lieutenant General Keith Alexander, USA, Nominee for Com- 
mander, United States Cyber Command 9 (on file with author) [hereinafter General Alexander 
Advance Questions]. See Nominations of VADM James A. Winnefeld, Jr., USN, to be Admiral and 
Commander, U.S. Northern Command/ Commander, North American Aerospace Defense Com- 
mand; and LTG Keith B. Alexander, USA, to be General and Director, National Security Agency/ 
Chief, Central Security Service/Commander, U.S. Cyber Command: Hearing Before the S. Comm. 
on Armed Services, 111th Cong. (2010), http://armed-services.senate.gov/testimony.cfm?wit_id 
=93678rid=4505. 

5. General Alexander Advance Questions, supra note 4, at 9. 

6. Id. One might easily imagine, especially considering General Alexander's additional po- 
sition as Director of the National Security Agency, that his response had in mind domestic legal 
limitations as much as international law. 

7. Mat 11-12. 

8. Id. at 12. 

9. Id. at 1 1. General Alexander submitted a portion of his response on the topic of interna- 
tional law on the use of force in a classified supplement. See id. 

10. See Bill Lambrecht, U.S. is Busy Thwarting Cyber Terrorism, LATlMES.COM (June 24, 
2010), http://www.latimes.com/business/la-fi-cyber-terrorism-20 100624,0,3306751. story. Early 
in the current president's tenure, cyber security took a prominent place in national security strat- 
egy. See The White House, Cyberspace Policy Review (2009), available at http://www 
.whitehouse.gov/administration/eop/nsc/cybersecurity. 

1 1 . See infra section III. 

12. See David Sadoff, A Question ofDeterminacy: The Legal Status of Anticipatory Self-Defense, 
40 Georgetown Journal of International Law 523 (2009) (concluding no legal consensus 
exists on anticipatory self-defense); W. Michael Reisman & Andrea Armstrong, The Past and 
Future of the Claim of Preemptive Self-Defense, 100 AMERICAN JOURNAL OF INTERNATIONAL 
LAW 525 (2006) (predicting the possibility of future invocations of preemptive self-defense); 
Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 VlLLANOVA LAW REVIEW 699 
(2005) (identifying methodological differences as the source of divergence in international law- 
yers' disagreements over preemptive self-defense); Thomas M. Franck, Preemption, Prevention 
and Anticipatory Self-Defense: New Law Regarding Recourse to Force?, 27 HASTINGS INTER- 
NATIONAL AND COMPARATIVE LAW REVIEW 425 (2004) (advocating abandonment of preemp- 
tive self-defense as inconsistent with the UN Charter). 

13. See Carsten Stahn, Collective Security and Self-Defense after the September 1 1 Attacks, 
10 TlLBURG FOREIGN LAW REVIEW 10 (2002); George K. Walker, Anticipatory Collective Self- 
Defense in the Charter Era: What the Treaties Have Said, 31 CORNELL INTERNATIONAL LAW 
JOURNAL 321 (1998); Hans Kelsen, Collective Security and Collective Self-Defense under the 
Charter of the United Nations, 42 AMERICAN JOURNAL OF INTERNATIONAL LAW 783 (1948). 

14. See Roberto Barsotti, Armed Reprisal, in THE CURRENT LEGAL REGULATION OF THE USE 
OF FORCE 79 (Antonio Cassese ed., 1986) (identifying "radical change" in the doctrine of self- 
defense as regards resort to armed reprisal); Michael A. Newton, Reconsidering Reprisals, 20 



79 



Low-Intensity Computer Network Attack and Self-Defense 

Duke Journal of Comparative & International Law 361 (2010) (arguing that a refined 
doctrine of reprisal might produce clearer limiting criteria than strained resorts to self-defense). 

15. See Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161,11 67-77 (Nov. 6) (rejecting US justi- 
fication for use of force as self-defense on failure to meet burden of proof); Geoffrey Corn & 
Dennis Gyllensporre, International Legality, the Use of Military Force, and Burdens of Persuasion: 
Self-Defense, the Initiation of Hostilities, and the Impact of the Choice between Two Evils on the 
Perception of International Legitimacy, 30 PACE LAW REVIEW 484 (2010) (identifying incentive 
structures resulting from comparative burdens of proof required of self-defense versus collective 
security action). 

16. Professor Dinstein is perhaps best known for this characterization of self-defense. See 
YORAM DINSTEIN, WAR, AGGRESSION & SELF-DEFENCE (4th ed. 2005). See also ANTHONY 

Clark arend & Robert J. Beck, International Law and the Use of Force 3 1 (1993). Pro- 
fessor Dinstein observes, "Only when the universal liberty to go to war was eliminated, could 
self-defence emerge as a right of signal importance in international law." DINSTEIN, supra at 177. 
A competing characterization asserts that the right of self-defense preceded the UN Charter use- 
of-force regime and thus stands as an autonomous legal right rather than an exception. See 
Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public 

ORDER: THE LEGAL REGULATION OF INTERNATIONAL COERCION 217-20, 232-41 (1961); 
JULIUS STONE, AGGRESSION AND WORLD ORDER 99-101 (1958) (identifying "absurdities" 
through extreme examples of a strict reading of Article 51 ); Sean D. Murphy, Self-Defense and the 
Israeli Wall Opinion: An Ipse Dixit from the Court?, 99 AMERICAN JOURNAL OF INTERNATIONAL 
LAW 62, 64 (2005) (emphasizing that the Charter includes an "inherent" right of self-defense) 
(emphasis in original). The United States' understanding of self-defense also appears to empha- 
size the inherent rather than exceptional nature of self-defense under international law. US 
Navy, US Marine Corps & US Coast Guard, The Commander's Handbook on the Law of Naval 
Operations NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7A, 4-4-4-5 (2007) [hereinafter 
Commander's Handbook] (citing Chairman of the Joint Chiefs of Staff Instruction 3121.01B, 
Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces (2005)). 

17. U.N. Charter art. 2, para. 4 

18. Id., art. 51. Articles 39 and 42, in conjunction, form the second exception to the Article 
2(4) prohibition, permitting States to use force when authorized by the Security Council. 

19. See Ian Brownlie, Principles of Public International Law 57-58 (7th ed. 2008) 
(admitting, however, the possibility of limited international personality for some international 
organizations); 1 INTERNATIONAL LAW: BEING THE COLLECTED PAPERS OF HERSCH 
LAUTERPACHT 136-37 (Elihu Lauterpacht ed., 1970). 

20. Indeed, the 9/1 1 terror attacks on the United States provoked a significant legislative ef- 
fort to strengthen domestic law enforcement. See Uniting and Strengthening America by Provid- 
ing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA 
PATRIOT Act), Pub. L. No. 107-56, 1 1 5 Stat. 272 (2001 ); Claude d'Estree & Luke Andrew Busby, 
U.S. Response to the Events of September 1 1, 2001: The USA PATRIOT Act, Title III, in LAW IN THE 
WAR ON INTERNATIONAL TERRORISM 107 (Ved P. Nanda ed., 2005) (analyzing and forecasting 
consequences of the Act). 

21. See John Arquilla, The New Rules of War, FOREIGN POLICY, Mar./Apr. 2010, at 60, avail- 
able at http://www.foreignpolicy.com/articles/2010/02/22/the_new_rules_of_war (Arquilla ob- 
serves, "[Terrorists and transnational criminals have embraced connectivity to coordinate 
global operations in ways that simply were not possible in the past. Before the Internet and the 



80 



Sean Watts 



World Wide Web, a terrorist network operating cohesively in more than 60 countries could not 
have existed. Today, a world full of Umar Farouk Abdulmutallabs awaits — and not all of them 
will fail"). 

22. LINDSAY MOIR, REAPPRAISING THE RESORT TO FORCE: INTERNATIONAL LAW, JUS AD 
BELLUM, AND THE WAR ON TERROR 150 (2010) (noting the novelty of the Taliban/Al-Qaeda re- 
lationship, where "the government of a State had apparently been inferior to, or dependent 
upon, a terrorist organization within its territory"). 

23. However, international shipping and naval forces have suffered increased attacks by 
Somali pirates in the western Indian Ocean. See Piracy at Sea, NYTlMES.COM, http://topics 
.nytimes.com/top/reference/timestopics/subjects/p/piracy_at_sea/index.html?scp=28csq=somalia 
%20pirates&st=cse (last updated Nov. 10, 2010) (noting a record number of pirate attacks in 
2009); Borzou Daragahi & Edmund Sanders, Pirates Show Range and Daring, LATlMES.COM 
(Nov. 18, 2008), http://articles.latimes.com/2008/nov/18/world/fg-piracyl8. 

24. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Terri- 
tory, Advisory Opinion, 2004 I.C.J. 136, | 80 (July 9) [hereinafter Legal Consequences of the 
Construction of a Wall]. Israel has since removed portions of the wall in response to improving 
security. See Sheera Frenkel, Israel Removes Wall, Palestinians Remain Wary, NPR.COM (Aug. 18, 
2010), http://www.npr.org/templates/story/story.php?storyId= 1292798 14. 

25. Legal Consequences of the Construction of a Wall, supra note 24, fflj 138-39. 

26. Id., 1| 138 (citing U.N. Doc. A/ES-10/PV.21 at 6 (Oct. 20, 2003)). 

27. Jd.,1jl39. 

28. Id., f 33 (separate opinion of Judge Higgins). 

29. Id., J 6 (declaration of Judge Buergenthal). 

30. See Murphy, supra note 16, at 62 (describing the opinion as "startling in its brevity and, 
upon analysis, unsatisfactory"); Ruth Wedgwood, The IC] Advisory Opinion on the Israeli Secu- 
rity Fence and the Limits of Self-Defense, 99 AMERICAN JOURNAL OF INTERNATIONAL LAW 52, 58 
(2005). But see Iain Scobbie, Words My Mother Never Taught Me — "In Defense of the Interna- 
tional Court," 99 AMERICAN JOURNAL OF INTERNATIONAL LAW 76, 77 (2005) (regarding the 
opinion's statements on self-defense as "well-founded"). 

31. Murphy, supra note 16, at 67-70. 

32. MOIR, supra note 22, at 140-47. CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE 
OF FORCE 136 (3d ed. 2008). 

33. See Murphy, supra note 16, at 67. 

34. GRAY, supra note 32, at 137 (citing SC 1944th meeting (1976)). 

35. Id. 

36. S.C. Res. 568, ffl[ 1, 4, U.N. Doc. S/RES/568 (June 21, 1985). 

37. See Commander's Handbook, supra note 16, at 3-10 (permitting US Navy vessels to ex- 
ercise authority beyond territorial waters where pursuit is initiated in internal waters). 

38. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 
I.C.J. 1 (Dec. 19) [hereinafter Armed Activities]. 

39. See Phoebe N. Okowa, Case Concerning Armed Activities on the Territory of the Congo 
(Democratic Republic of the Congo v. Uganda), 55 INTERNATIONAL AND COMPARATIVE LAW 
QUARTERLY 742, 747-48 (2006) (citing Position of the High Command of Uganda on the Pres- 
ence of the Uganda Peoples Defence Forces in the DRC (Sept. 11, 1998). Counter-Memorial of 
the Government of Uganda, vol. I, annex 27 & ch. 3 (Apr. 21, 2001)). 

40. Armed Activities, supra note 38, 1f 147. The Court identified "no need to respond to the 
contentions of the Parties as to whether and under what conditions contemporary interna- 
tional law provides for a right of self-defence against large-scale attacks by irregular forces." Id. 



81 



Low- Intensity Computer Network Attack and Self-Defense 

Reinforcing its skepticism of the Ugandan self-defense claim, the Court added, "The Court can- 
not fail to observe, however, that the taking of airports and towns many hundreds of kilometres 
from Uganda's border would not seem proportionate to the series of transborder attacks it 
claimed had given rise to the right of self-defence, nor to be necessary to that end." Id. 

41. Okowa, supra note 39, at 749; Stephanie A. Barbour & Zoe A. Salzman, "The Tangled 
Web": The Right of Self-Defense against Non-State Actors in the Armed Activities Case, 40 NEW 
York University Journal of International Law and Politics 53 (2007) (concluding the 
Armed Activities case left an understanding of self-defense ill-prepared for threats posed by non- 
State actors in control of State territory). 

42. Armed Activities, supra note 38, J 8 (separate opinion of Judge Simma). 

43. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, J 195 (June 27). It 
should be noted that for jurisdictional reasons, the Nicaragua Court analyzed the customary 
rather than purely-Charter-based body of law. 

44. Id. 

45. See Christopher J. Le Mon, Unilateral Intervention by Invitation in Civil Wars: The Effective 
Control Test Tested, 35 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 
741 (2003) (charting operation of the effective control test as a limit on State interventions). 

46. Although not addressing self-defense specifically, the International Criminal Tribunal 
for the former Yugoslavia developed an alternative standard for State responsibility in the 1999 
Tadic case. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, % 120 (Int'l Crim. Trib. for the 
former Yugoslavia July 15, 1999) (determining that to attribute actions of rebels to a State "it is 
sufficient that the group as a whole be under the overall control of a State") (emphasis added). 

47. See DlNSTEIN, supra note 16, at 207-8; Christian J. Tarns, The Use of Force against Terror- 
ists, 20 European Journal of International Law 359, 377 (2009). 

48. See NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 

9/n Commission Report (2004). 

49. S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001). 

50. S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001). 

5 1 . William Howard Taft IV, The Bush (43rd) Administration, in SHAPING FOREIGN POLICY 
IN TIMES OF CRISIS: THE ROLE OF INTERNATIONAL LAW AND THE STATE DEPARTMENT LEGAL 
ADVISER 127, 128-29 (Michael P. Scharf 8c Paul R. Williams eds., 2010). 

52. Press Release, North Atlantic Treaty Organization, Statement by the North Atlantic 
Council (Sept. 12, 2001), available at http://www.nato.int/docu/pr/2001/p01-124e.htm. 

53. North Atlantic Treaty art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243, available at 
http://www.nato.int/cps/en/natolive/official_texts_17120.htm. 

54. See DlNSTEIN, supra note 16, at 207-8; Barbour 8c Salzman, supra note 41, at 65 (noting 
that Resolutions 1368 and 1373 compound uncertainty whether non-State actors can rise to the 
level of armed attack). 

55. GRAY, supra note 32, at 18-20. 

56. U.N. Charter art. 25. 

57. Even ICJ decisions only bind parties to the case. See Statute of the International Court of 
Justice art. 59, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993. Louis Sohn has written impressively 
on the issue of which and how UN agents should interpret the Charter. Louis B. Sohn, The UN 
System as Authoritative Interpreter of Its Law, in 1 UNITED NATIONS LEGAL ORDER 169 (Oskar 
Schachter & Christopher C. Joyner eds., 1995). 

58. U.N. Charter art. 31 (permitting non-members of the Security Council to participate in 
discussions where the latter considers their interests to be "specially affected"). 



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Sean Watts 



59. See, e.g., THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 676 n.141 (Bruno 
Simma et al. eds., 1995) (recounting Security Council debate of the lawfulness of Israeli strikes 
initiating the 1967 Six-Day War) [hereinafter UN CHARTER COMMENTARY]. 

60. THOMAS FRANCK, RECOURSE TO FORCE 77 (2002) (surveying UN Security Council reac- 
tions to use of force in self-defense by Belgium, Turkey, Israel and, on six separate occasions, the 
United States). 

61. Id. 

62. U.N. Charter art. 51. Scholars generally recognize two schools of thought on the thresh- 
old of self-defense: a narrow understanding, viewing "armed attack" as the exclusive trigger for 
the right of self-defense, and a broad understanding, viewing "armed attack" as but one of many 
events capable of justifying resort to self-defense. See Natalino Ronzitti, The Expanding Law of 
Self-Defense, 11 JOURNAL OF CONFLICT AND SECURITY LAW 343, 344-45 (2006); Norman M. 
Feder, Reading the UN Charter Connotatively: Toward a New Definition of Armed Attack, 19 
New York University Journal of International Law and Policy 395, 403-4 (1987) 
(evaluating both views and advocating the narrow variant). 

63. Professor Brownlie notes that the records of the San Francisco diplomatic conference in- 
clude no explanation of the term "armed attack." IAN BROWNLIE, INTERNATIONAL LAW AND 
THE USE OF FORCE BY STATES 279 (1963). However, a historical account of the creation of the 
United Nations provides some background and parole evidence. See STEPHEN C. SCHLESINGER, 
ACT OF CREATION: THE FOUNDING OF THE UNITED NATIONS 181-83 (2003) (offering a narra- 
tive account of diplomatic efforts to draft Article 51). 

64. STONE, supra note 16, at 72. 

65. See UN CHARTER COMMENTARY, supra note 59, at 663 n.l 1 (citing exclusively German- 
language authors). 

66. See id. at 663 ("It is to be emphasized that Arts. 51 and 2(4) do not exactly correspond to 
one another in scope, i.e. [,] not every use offorce contrary to Art. 2(4) may be responded to with 
armed self-defence"). 

67. The records of the Charter's drafting conference suggest strongly that economic coer- 
cion would also not qualify as a use offorce. See UN CHARTER COMMENTARY, supra note 59, at 
112 (noting States' rejection of a Brazilian proposal to include economic coercion within the 
scope of the Article 2(4) prohibition). 

68. See STONE, supra note 16, at 72 n.l 68 (quoting Netherlands delegate M. Roling). 

69. See Michael Schmitt, Computer Network Attack and the Use of Force in International Law: 
Thoughts on a Normative Framework, 37 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 885, 934 
(1999). 

70. STONE, supra note 16, at 72. 

71. Military and Paramilitary Activities, supra note 43, \ 195. 

72. Id. The Court relied on the General Assembly's Definition of Aggression in significant 
part. Id. (relying on G.A. Res. 3314 (XXIX), U.N. Doc. A/RES/3314 (Dec. 14, 1974)). 

73. Id. 

74. Id. With respect to these findings, Gray observes, "The Court gave no authority for this 
Statement and was criticized for its failure to do so by some commentators." CHRISTINE GRAY, 
INTERNATIONAL LAW AND THE USE OF FORCE 143 (2d ed. 2004). 

75. See UN CHARTER COMMENTARY, supra note 59, at 664. 

76. See DlNSTEIN, supra note 16, at 193-96 (confirming the gap theory of the Charter's re- 
sponse structure); BROWNLIE, supra note 63, at 279 (observing, "Indirect aggression and the in- 
cursions of armed bands can be countered by measures of defence which do not involve military 
operations across frontiers"). For discussion of the topic in the context of CNA specifically, see 



83 



Low-Intensity Computer Network Attack and Self-Defense 

Thomas C. Wingfield, The Law of Information Conflict: National Security Law in 
CYBERSPACE 47-49 (2000); Schmitt, supra note 69, at 929 (observing that only CNA intended to 
directly cause physical destruction or injury authorize forcible responses under the Charter). 

77. Further support for the gap theory may be found in the International Court of Justice 
Nicaragua and Oil Platforms cases. See DlNSTEIN, supra note 16, at 193-94; Military and Paramil- 
itary Activities, supra note 43, 1 191; Oil Platforms, supra note 15, ^ 51. 

78. See David J. Scheffer, Commentary on Collective Security, in LAW AND FORCE IN THE NEW 
INTERNATIONAL ORDER 101-4 (Lori Fisler Damrosch & David J. Scheffer eds., 1991) [hereinaf- 
ter Damrosch & Scheffer]. 

79. GRAY, supra note 32, at 177. 

80. See discussion supra p. 66 (citing Military and Paramilitary Activities, supra note 43, J 
195). 

81. See W. Michael Reisman, Allocating Competences to Use Coercion in the Post-Cold War 
World, in Damrosch & Scheffer, supra note 78, at 39. 

82. See GRAY, supra note 32, at 1 8 1 (citing William Howard Taft IV, Self-Defense and the Oil 
Platforms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 295, 302 (2004)). 

83. Taft, supra note 82, at 295. 

84. Oil Platforms, supra note 15, ^ 12 (separate opinion of Judge Simma). I am grateful to 
Professor Wolff Heintschel von Heinegg for alerting an audience to this passage at a recent inter- 
national law symposium. 

85. Id. 

86. See Military and Paramilitary Activities, supra note 43, ^ 249. Curiously, however, the 
Court restricted forcible countermeasures to the victim State, ruling out collective use thereof. 
Id. 

87. See UN CHARTER COMMENTARY, supra note 59, at 664 (citing Julius Stone, Force and the 
Charter in the Seventies, 2 SYRACUSE JOURNAL OF INTERNATIONAL LAW AND COMMERCE 1,11- 
12 (1974); ALFRED VERDROSS & BRUNO SlMMA, UNIVERSELLES VOLKERRECHT: THEORIE UND 
PRAXIS U 472 (3d ed. 1984)). 

88. Reisman, supra note 81, at 43. 

89. See, e.g., WALTER GARY SHARP, CYBERSPACE AND THE USE OF FORCE (1999); 
WINGFIELD, supra note 76; Eric Jensen, Computer Attacks on Critical National Infrastructure: A 
Use of Force Invoking the Right of Self-Defense, 38 STANFORD JOURNAL OF INTERNATIONAL LAW 
207 (2002); Schmitt, supra note 69 (developing the most influential model for assessing the legal 
significance of cyber events). 

90. For an excellent account of the Estonian incident, see ENEKEN TlKK, KADRI KASKA & LlIS 
VlHUL, INTERNATIONAL CYBER INCIDENTS: LEGAL CONSIDERATIONS 14-25 (2010) [hereinafter 
TlKKETAL.]. 

91. See id. at 20. 

92. DDoS describes the use of masses of bogus access requests to websites to flood commu- 
nications channels, inducing shutdown. See Herbert S. Lin, Offensive Cyber Operations and the 
Use of Force, 4 JOURNAL OF NATIONAL SECURITY LAW AND POLICY 63, 70 (2010). 

93. See TlKK ET AL., supra note 90, at 20-21, 24-25. 

94. See id. at 16-18. 

95. See id. at 17. 

96. See id. at 17-18 (citing Estonia First Country in the World to Introduce Internet Voting, 
EURACTIV, http://www.euractiv.com/en/egovernment/estonia-country-world-introduce-internet 
-voting/article- 145735 (last updated June 15, 2007)). 

97. See TlKK ET AL, supra note 90, at 1 8. 



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98. Ian Traynor, Russia Accused of Unleashing Cyberwar to Disable Estonia: Parliament, min- 
istries, banks, media targeted: Nato experts sent in to strengthen defences, GUARDIAN (London), 
May 17, 2007, Home Pages at 1, available at http://www.guardian.co.uk/world/2007/may/17/ 
topstories3.russia. 

99. Charles Clover, Kremlin-backed Group Behind Estonia Cyber Blitz, FT.COM (Mar. 11, 
2009), http://www.ft.eom/cms/s/0/57536d5a-0ddc-llde-8ea3-0000779fd2ac.html. 

100. Noah Schactman, Kremlin Kids: We Launched the Estonian Cyber War, WIRED (Mar. 11, 
2009), http://blog.wired.com/defense/2009/03/pro-kremlin-gro.html. An Internet security con- 
sultant speculates the Russian government employed an organization known as the Russian 
Business Network (RBN) to carry out the attacks on its behalf in exchange for immunity for prior 
criminal acts. See Linton Chiswick, Cyber Attack Casts New Light on Georgia Invasion, THE FIRST 
POST (Aug. 15, 2008), http://www.thefirstpost.co.uk/45 135,features,cyber-attack-casts-new 
-light-on-georgia-invasion. The consultant describes the RBN as 

a shadowy, St Petersburg-based internet company . . . believed to provide secure host- 
ing for much of the world's online crime, from illicit pornography to credit card fraud 
and phishing. It is also believed to control the world's biggest and most powerful 
"botnet" — a network of infected zombie computers of a scale necessary to perform de- 
structive cyber-terrorism or cyber-warfare on an entire State. 

Id. 

101. See TlKK ET AL., supra note 90, at 23. 

102. See id. at 24. 

103. See id. at 26-29. 

104. Id. at 25-26. 

105. See id. 

106. See id. 

107. See Michael Schwirtz, Anne Barnard & C. J. Chivers, Russia and Georgia Clash Over 
Separatist Region, NYTlMES.COM (Aug. 8, 2008), http://www.nytimes.com/2008/08/09/world/ 
europe/09georgia.html?hp (offering a same-day account of the invasion); Peter Finn, A Two- 
Sided Descent Into Full-Scale War, WASHINGTON POST, Aug. 17, 2008, at Al, available at http://www 
.washingtonpost.com/wp-dyn/content/article/2008/08/16/AR200808 1600502_pf.html (offering ex- 
panded, day-by-day accounts of events leading up to and the conduct of the invasion). 

108. See TlKK ET AL., supra note 90, at 70; John Markoff, Before the Gunfire, Cyberattacks, NEW 
YORK TIMES, Aug. 13, 2008, at Al. 

109. See TlKK ET AL., supra note 90, at 70. 

110. See id. at 70-72. 

111. See id. 

112. See id. at 78. 

113. See id. 

114. Not surprisingly, Russia defended the invasion as an exercise of self-defense to address 
Georgian maltreatment of Russian citizens in South Ossetia. Yet under the traditional view, only 
one side may lawfully claim self-defense. As Dinstein suggests, "There is no self-defence from 
self-defence." DINSTEIN, supra note 16, at 178. 

115. See ALVIN TOFFLER, The THIRD WAVE (1984) (describing transition from an industrial- 
centric to an information-centric age). 

1 16. Headquarters, Department of the Army, FM 3-0, Operations, at 2-2 (2008) (describing sit- 
uations of increasing violence, including stable peace, unstable peace, insurgency and general war). 



85 



Low-Intensity Computer Network Attack and Self-Defense 

117. Antoine Lemay, Jose M. Fernandeza & Scott Knight, Pinprick attacks, a lesser included 
case?, in CONFERENCE ON CYBER CONFLICT, PROCEEDINGS 2010, at 183, 191 (Christian 
Czosseck & Karlis Podins eds., 2010) [hereinafter Lemay et al.]. 

118. See id. at 190. 

1 1 9. Gustavo De Las Casas, Destroying al-Qaeda Is Not an Option (Yet), FOREIGN POLICY.COM 
(Nov. 10, 2009), http://www.foreignpolicy.com/articles/2009/ll/10/the_case_for_keeping_al 
_qaeda?page=0,0 (noting that since 2001 40 percent of Al-Qaeda leadership has been killed or 
captured). 

120. See Lemay et al., supra note 1 17, at 190. Lemay and his co-authors describe conversion 
capability as the ability of a State to transform strategic resources, such as knowledge and money, 
into military advantage, usually through a military-industrial complex. Id. 

121. See Technology, Policy, Law, and Ethics Regarding U.S. Acquisition and Use 
OF CYBERATTACK CAPABILITIES 2-2 (William A. Owens, Kenneth W. Dam & Herbert S. Lin eds., 
2009). 

122. See id. 

123. See Samuel Liles, Cyber Warfare: As a Form of Low- Intensity Conflict and Insurgency, in 
Conference on Cyber Conflict, supra note 1 17, at 47, 53 (quoting Bruce D. Berkowitz, 
The New Face of War: How War Will Be Fought in the 2 1st Century 147 (2003)). 

1 24. See Rain Ottis, From Pitchforks to Laptops: Volunteers in Cyber Conflicts, in CONFERENCE 
on Cyber Conflict, supra note 1 17, at 97. 

125. See id. 

126. One wonders, however, whether unorganized or undisciplined hacktivists might 
compromise the relative advantage of denying the target correlation through overly enthusias- 
tic attacks. 

127. DAVID A. BELL, THE FIRST TOTAL WAR 24-25 (2007) (noting the eighteenth-century ad- 
vent of a Western conceptual separation of military and civilian). 

128. Lemay et al., supra note 1 17, at 188. 

129. See LAW OF WAR HANDBOOK 166 (Keith E. Puis ed., 2005) (this publication of the US 
Army's Judge Advocate General's School describes distinction as the "grandfather of all princi- 
ples" of the law of war). 

1 30. See, e.g., Convention for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field art. 2, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 3 1 ; Convention for the 
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at 
Sea art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of 
Prisoners ofWar art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the 
Protection of Civilian Persons in Time of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 
287; Convention No. II with Respect to the Laws and Customs of War on Land art. 2, July 29, 
1899, 32 Stat. 1803, 1 Bevans 247. 

131. See Lemay et al., supra note 1 17, at 189; Liles, supra note 123, at 48-49. 

1 32. Qiao Liang & Wang Xiangsui, Unrestricted Warfare (1999). 

133. Thomas Franck, Who Killed Article 2(4)?, 64 AMERICAN JOURNAL OF INTERNATIONAL 
LAW 809 (1970). 

134. Id. at 809. 

135. Id. 

136. Id. at 812. 

137. Id. at 836. 

1 38. See supra p. 59. 



86 



Sean Watts 



139. Harold Hongju Koh, Legal Adviser, US Department of State, Remarks at the Annual 
Meeting of the American Society of International Law: The Obama Administration and Interna- 
tional Law (Mar. 25, 2010), http://www.state.gOv/s/l/releases/remarks/139119.htm. 

140. See supra pp. 68-69. 

141. GRAY, supra note 32, at 28. 

142. See DlNSTEIN, supra note 16, at 178; WlNGFIELD, supra note 76, at 40-41; UN CHARTER 
COMMENTARY, supra note 59, at 663. 

143. See Koh, supra note 139 (reciting the inherent right to self-defense to justify targeting 
of terror suspects). In a recently published account of his experience as State Department Legal 
Adviser, Abraham Sofaer observes that no US president has ever accepted or is ever likely to ac- 
cept a restrictive view of the right to self-defense. Sofaer explicitly rejects the notion "that a State 
may exercise its right of self-defense only if the 'attack' is carried out by another State and occurs 
on the territory of the State claiming the right to defend itself." Abraham Sofaer, The Reagan and 
Bush Administrations, in SHAPING FOREIGN POLICY IN TIMES OF CRISIS, supra note 5 1 , at 55, 83. 

144. See Louis Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 
American Journal of International Law 544 (1971). 

145. See id. 

146. See Ottis, supra note 124, at 99-101. 

147. STONE, supra note 16, at 104 (characterizing ambiguity of resort to force terminology as 
evidence of limits of legal efforts to curb States' pursuit of self-interest in international relations). 



87 



V 



Cyber Operations and the Jus in Bello: 

Key Issues 

Michael N.Schmitt* 



On August 7, 2008, Georgian forces launched attacks into South Ossetia, in- 
cluding against Russian troops who were in the breakaway region as 
"peacekeepers." The jus ad bellum issues surrounding the conflict remain contro- 
versial. 1 However, it is incontrovertible that once Georgian and Russian forces 
became embroiled in hostilities against each other, an international armed conflict 
subject to the jus in bello (international humanitarian law (IHL) or the law of 
armed conflict) had begun. 

During the conflict, numerous defacement and denial of service cyber opera- 
tions were directed against Georgian entities. 2 The cyber targets included the 
websites of the President; Parliament; Foreign Affairs, Defence and Education 
ministries; domestic and foreign media; banks; and private Internet servers and 
blogs. For instance, defacement of the Ministry of Foreign Affairs website in- 
cluded the posting of a collage of photos of Adolf Hitler and Georgian President 
Mikheil Saakashvili. Similarly, the site of the National Bank of Georgia was re- 
placed with one depicting twentieth- century dictators together with Saakashvili. 
On average, each operation lasted two hours. Although no physical damage or in- 
juries were reported, the disruption of services proved severe. In particular, the 
Georgian government found itself unable to broadcast information about the 



* Chair of Public International Law, Durham University, United Kingdom. 



Cyber Operations and the Jus in Bello: Key Issues 



conflict and Georgian banks went off-line, as a self-imposed precautionary mea- 
sure, for ten days. 

The identity of the originators of the operations remains uncertain. As with 
those against Estonia the previous year, most of the operations were traceable to 
Russia but there was no conclusive evidence that the Russian government con- 
ducted the attacks or was otherwise involved therein. While certain of them were 
traceable to Russian government computers, the possibility that they were 
"pwned," that is, taken over for the purpose of mounting attacks, cannot be ruled 
out. Nevertheless, that a website containing potential Georgian cyber targets and 
malicious software, StopGeorgia.ru, came on line within hours of the commence- 
ment of hostilities aroused suspicions of governmental involvement. 

Foreign governments and private sources promptly assisted the Georgians. 
Google provided hosting services for Georgian sites, an important contribution in 
light of its advanced security. The Georgian Ministry of Defence and Ministry of 
Foreign Affairs websites were moved to US and Estonian servers, while the Polish 
President made his website available for posting Georgian government informa- 
tion about the conflict. Despite these efforts, the attacks significantly disrupted the 
operation of the Georgian cyber infrastructure. 

As the Georgia case illustrates, cyber operations have become embedded in 
modern warfare. This article examines three central IHL issues raised by cyber op- 
erations mounted during armed conflicts: the principle of distinction, direct par- 
ticipation by civilians in hostilities and classification of conflict. It makes no effort 
to explore the jus ad bellum, which is addressed by companion contributions to this 
volume of the International Law Studies. As the normative architecture governing 
cyber operations remains indistinct, it must be cautioned that the conclusions 
drawn are those of the author alone and somewhat tentative. However, attention is 
drawn to the ongoing efforts of a group of international experts working under the 
auspices of the NATO Cooperative Cyber Defence Centre of Excellence to craft a 
Manual on the International Law of Cyber Warfare? Said manual, albeit soft law, 
will help clear much of the legal fog of cyber warfare. 

Cyber Operations and the Principle of Distinction 

Article 48 of Additional Protocol I requires the parties to a conflict to "at all times 
distinguish between the civilian population and combatants and between civilian 
objects and military objectives and accordingly direct their operations only against 
military objectives." 4 In doing so, it restates the customary law principle of distinc- 
tion, which has been labeled by the International Court of Justice as one of two 
"cardinal" principles of IHL (the other being the prohibition of unnecessary 

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Michael N. Schmitt 



suffering). 5 It is incontrovertible that the principle applies to cyber operations con- 
ducted during an armed conflict. 

The devil, however, is in the details. Note the term "operation" in Article 48. Its 
use would at first glance appear to prohibit any cyber activity directed against civil- 
ians or civilian objects. Yet operations aimed at the civilian population are not un- 
common during armed conflict, the paradigmatic example being psychological 
operations, which are generally deemed lawful unless they cause physical harm or 
human suffering. 

Subsequent articles resident in Additional Protocol I shed light on the founda- 
tional intent of the principle of distinction. In particular, they "operationalize" 
Article 48 by setting forth restrictions, prohibitions and requirements that are typ- 
ically framed in terms of "attacks." Article 51.1 exemplifies this operationaliza- 
tion. It states that the "civilian population and individual civilians shall enjoy 
general protection against dangers arising from military operations," but goes on 
to note that " [t] o give effect to this protection, the following rules . . . shall be 
observed in all circumstances." The rules include the prohibitions on making 
the civilian population or individual civilians the "object of attack ," 6 conducting 
"indiscriminate attacks" 7 and engaging in "attacks against the civilian population 
or civilians byway of reprisal." 8 Article 51 also illustrates the notion of "indiscrim- 
inate" by reference to two types of operations. The first is "an attack . . . which 
treats as a single military objective a number of clearly separated and distinct mili- 
tary objectives located in a city, town, village or other area containing a similar 
concentration of civilians or civilian objects." 9 The second is an expression of the 
principle of proportionality, which bars "an attack which may be expected to 
cause incidental loss of civilian life, injury to civilians, damage to civilian objects, 
or a combination thereof, which would be excessive in relation to the concrete and 
direct military advantage anticipated." 10 

Other articles take the same approach. Article 52, the property counterpart to 
Article 51's protection of civilians, forbids making civilian items the "object of at- 
tack" and limits attacks to military objectives. 11 Article 54 notes that it is "prohib- 
ited to attack, destroy, remove or render useless objects indispensible to the 
survival of the civilian population," 12 whereas Article 55 prohibits a [a]ttacks 
against the natural environment by way of reprisals." 13 Article 56 provides that 
" [w]orks or installations containing dangerous forces . . . shall not be made the ob- 
ject of attack, even where these objects are military objectives, if such attack may 
cause the release of dangerous forces and consequent severe loss among the civilian 
population." 14 It further provides that "[o]ther military objectives located at or in 
the vicinity of these works or installations shall not be made the object of attack" if 
the attack may result in similar consequences. 15 

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Cyber Operations and the Jus in Bello: Key Issues 



A central component of the principle of distinction is that "[i]n the conduct of 
military operations, constant care shall be taken to spare the civilian population, ci- 
vilians and civilian objects." 16 Despite the reference to "operations," the norma- 
tively meaningful aspects of the attendant requirements are set forth in terms of 
attacks. Indeed, the article itself is titled "precautions in attack." According to the 
article, "those who plan or decide upon an attack" are required to "do everything 
feasible to verify that the objectives to be attacked are neither civilians nor civilian 
objects and are not subject to special protection," 17 "take all feasible precautions in 
the choice of means and methods of attack" in order to minimize civilian harm 18 
and "refrain from deciding to launch an attack" that maybe expected to violate the 
rule of proportionality. 19 "Attacks must be canceled or suspended if it becomes ap- 
parent" that the intended target is not a military objective or if the strike would run 
counter to proportionality limitations, 20 and "effective advance warning shall be 
given of attacks which may affect the civilian population" should circumstances 
permit. 21 When considering possible targets, and choice is possible between them 
without forfeiting military advantage, "the objective to be selected shall be that the 
attack on which may be expected to cause the least danger to civilian lives and civil- 
ian objects." 22 None of the provisions of Article 57 maybe interpreted as "authoriz- 
ing any attacks against the civilian population, civilians or civilian objects." 23 The 
focus on attacks appears again in the following article, which imposes an obligation 
on defending parties to take "precautions against the effect of attacks" in order to 
safeguard civilians and civilian objects. 24 

The emphasis on restricting military operations by reference to attacks appears 
repeatedly in other chapters of Additional Protocol I. For example, medical units 
are not to be made the "object of attack" may not be used to "shield military objec- 
tives from attack" and must be located, whenever possible, so that "attacks against 
military objectives do not imperil their safety." 25 Prohibitions exist on making 
those hors de combat due to wounds or surrender and individuals parachuting 
from a disabled aircraft an object of attack. 26 Combatants are obligated to "distin- 
guish themselves from the civilian population while they are engaged in an attack 
or in a military operation preparatory to attack" 21 and "[i]t is prohibited ... to 
attack, by any means whatsoever, non-defended localities." 28 

As should be apparent, the reference to operations in Article 48 must be inter- 
preted as bearing on a particular type of operation, an attack. Operations not 
amounting to an attack, such as psychological operations, are generally accepted as 
lawful. 

But what is an attack? Article 49 of Additional Protocol I, in a provision that cer- 
tainly reflects customary understandings of the term, defines attacks as "acts of vio- 
lence against the adversary, whether in offence or in defence." 29 The linkage between 

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Michael N. Schmitt 



operations and violence is further revealed in the International Committee of the 
Red Cross's (ICRC) Commentary to Article 48, which notes that "the word opera- 
tion should be understood in the context of the whole section; it refers to military 
operations during which violence is used." 30 That Additional Protocol I and its of- 
ficial commentary define both operations and attacks by reference to the notion of 
violence further strengthens the conclusion that application of the principle of dis- 
tinction generally depends on an attack having occurred and that an attack is an ac- 
tion during armed conflict that is violent in nature. 

Since the plain text of Article 49 appears to require a violent act for qualification 
as an attack, by a strict textual interpretation, non-kinetic operations, i.e., opera- 
tions which themselves do not comprise physical force, would be excluded. This 
appeared to have been the prevailing interpretation at the time the Additional Pro- 
tocol was drafted. As noted in Bothe, Partsch and Solf s (all involved in drafting the 
Protocol) respected commentary on the provision: "The term 'acts of violence' de- 
notes physical force. Thus, the concept of 'attacks' does not include dissemination 
of propaganda, embargoes, or other non-physical means of psychological or eco- 
nomic warfare." 31 Similarly, the ICRC Commentary on Article 49 suggests that "the 
term 'attack' means 'combat action.'" 32 

It must be remembered that although treaties are to be interpreted "in accor- 
dance with the ordinary meaning to be given to their terms," said interpretations 
must be made in "context and in the light of [their] object and purpose." 33 At the 
time Additional Protocol I was drafted, cyber operations did not exist; virtually all 
military "attacks" employed means that released kinetic energy, as through an 
explosion or the force of a bullet striking an individual. While the text of Article 49 
is framed in terms of the nature of the act amounting to an attack, the drafters 
must have been primarily concerned with its consequences for the civilian popu- 
lation. Protection of the population was the Protocol's central "object and pur- 
pose" with regard to the rules of targeting. "Violence" merely constituted useful 
prescriptive shorthand for use in rules designed to shield the population from 
harmful effects. Despite being styled as act-based norms (violence), they are in fact 
consequence-based. 

The text of Additional Protocol I's various rules developing the principle of dis- 
tinction supports this conclusion. Article 51 sets out the general premise that civil- 
ians "enjoy general protection against dangers arising from military operations" 
and bars those acts or threats of violence "the primary purpose of which is to 
spread terror among the civilian population." 34 It also frames the principle of pro- 
portionality by reference to expected "incidental loss of civilian life, injury to civil- 
ians, damage to civilian objects," a formula repeated in Article 57. 35 During 
attacks, the precautions requirements of Article 57 mandate selection of methods 

93 



Cyber Operations and the Jus in Bello: Key Issues 



and means of warfare in order to minimize "incidental loss of civilian life, injury to 
civilians and damage to civilian objects," 36 the issuance of warnings if an attack 
may "affect the civilian population," 37 and choosing among potential targets in 
part based on the goal of causing "the least danger to civilian lives and to civilian 
objects." s With regard to aerial and naval operations, attacks must take all reason- 
able precautions "to avoid losses of Chilian lives and damage to civilian objects." 39 
In other articles, the environment is protected against "widespread, long-term and 
severe damage" 40 and dams, dykes and nuclear electrical generating stations are 
protected out of concern for "severe losses among the civilian population." 41 

As these examples clearly illustrate, it is not the violence of the act that consti- 
tutes the condition precedent to limiting the occurrence of an attack, but the vio- 
lence of the ensuing result. In other words, the legal prohibition is on attacking, 
rather than targeting, protected persons and objects. This interpretation should 
not be considered novel, for it has always been the case that operations employing 
biological contagions or chemicals have been characterized as attacks, even though 
non-kinetic in nature, because their consequences could prove harmful, even le- 
thal. Thus, Bothe, Partsch and Solf, despite the extract above from their classic 
work, correctly defined attacks in a consequence-based fashion by asserting that 
the term referred to "those aspects of military operations that most directly affect 
the safety of the civilian population and the integrity of civilian objects." 42 

Cyber operations can unquestionably generate such consequences even though 
they launch no physical force themselves. For instance, a cyber operation against 
an air traffic control system would place aircraft, whether military or civilian, at 
risk. Or one targeting a dam could result in the release of waters, thereby endanger- 
ing persons and property downstream. In neither case would the actual act be 
destructive, but in both the consequences would be. Referring back to the require- 
ment of violence, and its development in Additional Protocol I, cyber operations 
can therefore qualify as "attacks," even though they are not themselves "violent," 
because they have "violent consequences." A cyber operation, like any other opera- 
tion, is an attack when resulting in death or injury of individuals, whether civil- 
ians or combatants, or damage to or destruction of objects, whether military 
objectives or civilian objects. 

A cyber operation that is intended, but fails, to generate such results would be 
encompassed in the concept, in much the same way that a rifle shot that misses its 
target is nevertheless an attack in IHL. Similarly, one expected to cause collateral 
damage to civilian objects or incidental harm to civilians would qualify, even if no 
harm befell the military objective targeted. This latter point is somewhat unique to 
cyber operations since lawful kinetic operations are typically intended to cause the 
requisite harm to the target, with incidental harm to civilians being a by-product of 



94 



Michael N. Schmitt 



the attack, as with civilians caught within the blast radius of a bomb employed 
against a military facility. In a cyber operation, however, the target may not be 
physically harmed at all, yet the operation could nevertheless result in collateral 
damage or incidental injury, as in simply opening the floodgates of a dam. 

By this interpretation, the operations against Georgia were not attacks and 
therefore not unlawful under international humanitarian law. They involved dis- 
ruption and defacement, but no physical harm to objects or injury to persons. 

There is an alternative approach, one suggested by Dr. Knut Dormann of the 
ICRC's legal division. 43 Dormann points to the definition of military objectives in 
Article 52.2 of Additional Protocol I, one generally accepted as the correct articula- 
tion of customary law, as support for his position: "military objectives are limited 
to those objects which by their nature, location, purpose or use make an effective 
contribution to military action and whose total or partial destruction, capture or 
neutralization, in the circumstances ruling at the time, offers a definite military ad- 
vantage." 44 Noting that the definition includes "neutralization," he suggests that 
"[i]t is irrelevant whether an object is disabled through destruction or in any other 
way." 45 In doing so, he dispenses with the requirement for damage, destruction, 
death or injury for an action to qualify as an attack. Consequently, the prohibition 
on "attacking" civilians and civilian objects extends to cyber operations "targeting" 
them. By the Dormann approach, many of the cyber operations conducted against 
Georgia would qualify as "attacks" and those targeting civilian systems would be 
unlawful under IHL. 

The approach is not unreasonable in light of the severe non-physical harm that 
can be caused by cyber operations. It responds to concerns that the other approach 
is under- inclusive. However, Dormann's poses the opposite risk, that of over- 
inclusivity. It would encompass, for instance, all denial of service attacks, including 
those in which mere inconvenience resulted, as in the case of blocking a television 
broadcast or university website. State practice provides no support for the notion 
that causation of inconvenience is intended to be prohibited in IHL. On the con- 
trary, inconvenience and interference with the daily lives of civilians are a frequent 
result of armed conflict and psychological operations directed against the civilian 
population are common. Dormann is to be commended for identifying the unsat- 
isfactory result of limiting "attacks" to those operations causing death, injury, 
damage or destruction, but his proposed remedy goes too far. 

It also relies on law that is not directly on point. Military objectives are those objects 
that may be attacked. But the preliminary question is whether an attack is being 
conducted or contemplated. Only when that question is answered in the affirma- 
tive does the definition of military objective come into play. The issue with regard 
to the definition of military objectives is what may be attacked, not how or with 

95 



Cyber Operations and the Jus in Bello: Key Issues 



what consequences. Moreover, the drafters envisioned "neutralization" in the con- 
text of an attack. The term was included to encompass cases involving "an attack 
for the purpose of denying the use of an object to the enemy without necessarily de- 
stroying it." 46 Examples include using landmines to render an area of land impass- 
able or firing antipersonnel munitions at enemy surface-to-air missile sites to force 
gun crews to take cover while an air attack against other targets is under way. 47 

By the principle of distinction, civilian objects may not be attacked during 
armed conflict. With respect to cyber operations, one unsettled issue is whether 
data resident in computers comprise an "object." The implications of the answer 
are momentous. To the extent they do, direct operations against civilian data 
would constitute an unlawful attack on a civilian object. Further, any harm caused 
to civilian data during a cyber attack on a lawful military objective would have to be 
considered in the proportionality calculation and when determining the nature of 
the precautions required during attack. 

No definitive answer to this question exists. It would appear overbroad to 
characterize all data as "objects." Surely a cyber operation that deletes an innocu- 
ous e-mail or temporarily disrupts a television broadcast does not amount to an 
unlawful attack on a civilian object. For instance, it is well-settled that an operation 
employing electronic warfare to disrupt civilian media is lawful. It would make no 
sense to distinguish between such an operation and a cyber operation that destroys 
data to achieve precisely the same result. 

Absent an agreed-upon interpretation in the cyber context, it is perhaps best to 
tread lightly in characterizing data as an object. Doing so might be appropriate in 
two situations. First, some data are directly transferable into tangible objects. For 
instance, banking account data are designed to be immediately transformable into 
money at an automatic teller machine. To the extent the data are destroyed, so too 
is the tangible equivalent, the money. There are few examples of such data. Second, 
some data have intrinsic value. An example would be digital art. If the data are de- 
stroyed, the art is as well. Presumably, it should be protected as civilian property 
and in some cases as cultural property. But again, such cases are rare. 

Generally, data should not be characterized as an object in itself. Rather, the de- 
terminative question is whether the consequences attendant to its destruction in- 
volve the requisite level of harm to protected physical objects or persons. If so, the 
cyber operation constitutes an unlawful attack. 

Cyber operations also bear on certain issues regarding application of the concept 
of military objectives. Networking means that there is a much higher likelihood 
that cyber systems will be dual-use (used for both military and civilian purposes), 
and thereby qualify as military objectives. Similarly, military reliance on software 
and hardware produced for the civilian population arguably renders facilities 



96 



Michael N. Schmitt 



that produce them lawfully targetable war-supporting military objectives. And, 
since cyber systems are essential to the economy, certain of them may constitute 
war- sustaining objects, which the United States, as distinct from most other coun- 
tries, characterizes as military objectives. 48 

The cyber operations against Georgia illustrate these points. In no case did the 
operations qualify as "attacks" under IHL, since no physical damage or injury re- 
sulted. But assuming solely for the sake of analysis that they did, some, such as 
those against Ministry of Defence servers, would have been lawful as directed 
against military objectives (although the hacktivists enjoyed no belligerent right to 
engage in hostilities in the first place). Others, such as those targeting the Ministry 
of Education and media facilities, would have violated IHL proscriptions. 

Additionally, the operations against Georgia illustrate two practical aspects of 
cyber operations. First, it is likely that attackers will target "soft sites," that is, sites 
that are not well-secured. The most vulnerable are those in the civilian or non- 
security governmental sectors. In future conflicts, attacks on civilian cyber targets 
are therefore highly likely. Second, the attacks on the banking system illustrate the 
appeal of targeting objects that might fall into the contentious "war-sustaining" 
category. For instance, it would be simpler and less risky to undermine a State's oil 
export capacity with cyber attacks that disrupt storage and distribution than to 
physically destroy the facilities and the transportation links upon which export de- 
pends. This is especially so when a State is capable of effectively defending against 
traditional kinetic attacks. 

Cyber Operations and Direct Participation in Hostilities 

Those who qualify as combatants enjoy the belligerent right of engaging in hostili- 
ties; no reason exists to distinguish cyber from kinetic military operations in this 
regard. However, cyber operations do present some difficulty as to application of 
the rules regarding direct participation by civilians in hostilities. According to 
Article 51.3 of Additional Protocol I, "civilians shall enjoy the protection afforded 
by this Section [which addresses the conduct of hostilities], unless and for such 
time as they take a direct part in hostilities." A comparable provision exists for 
non-international armed conflict, and the notion is undoubtedly customary in 
nature. 49 The consequence of the rule is that civilians may be targeted while they 
directly participate in hostilities. Additionally, such direct participants do not fac- 
tor into either the proportionality analysis or precautions in attack requirements. 
The question, then, is when do civilians who participate in cyber, as distinct 
from kinetic, operations become direct participants in hostilities. 



97 



Cyber Operations and the Jus in Bello: Key Issues 



Analysis begins by determining whether the individuals concerned qualify as 
members of the armed forces. If so, the direct participation rules do not apply since 
they may be targeted directly even when not participating in hostilities. In its Inter- 
pretive Guidance on the Notion of Direct Participation in Hostilities, the ICRC has in- 
cluded organized armed groups belonging to a party to the conflict in the category 
of armed forces. 50 Although the Guidance has proven controversial in other re- 
spects, 51 consensus existed among the experts convened to develop the product 
that it was appropriate to treat organized armed groups in the same manner as the 
armed forces for the purposes of targeting law. 

But when do hackers and non-military groups engaging in cyber operations 
qualify as organized armed groups? By definition, an organized armed group must 
be both organized and armed. With regard to the former criterion, the most trou- 
blesome question is whether a group may be "organized virtually." In the virtual 
domain, groups exist whose members never have any physical contact. Such 
groups have many purposes — social, educational, financial, charitable and so 
forth. In fact, it is not rare for dispersed military personnel to organize themselves 
virtually, as in the case of intelligence sharing. 

IHL does not develop the notion of organization to the degree necessary to 
come to definitive conclusions regarding virtual organization. The ICRC's Com- 
mentary to Additional Protocol I notes that 

[t]he term "organized" is obviously rather flexible, as there are a large number of de- 
grees of organization. In the first place, this should be interpreted in the sense that the 
fighting should have a collective character, be conducted under proper control and ac- 
cording to rules, as opposed to individuals operating in isolation with no correspond- 
ing preparation or training. 52 

Drawing on this definition, at one end of the continuum would be those "groups" 
consisting of autonomous actors who are simply all targeting a State, perhaps in 
response to a broad call to do so from one or more sources. They do not operate 
under the direction of a particular individual nor does the group have any formal 
organizational structure. These groups cannot be deemed to be organized, and, 
therefore, individuals involved therein remain civilians subject to the rules of di- 
rect participation. 

At the other end are those who act collectively and cooperatively. Albeit virtual, 
an online group may have a defined command structure and coordinate its 
activities — for instance, by allocating cyber targets, developing and sharing hacker 
tools, cooperating in identifying target vulnerabilities and conducting postattack 



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damage assessments. There is little justification for excluding groups of this nature 
from "armed forces" on the basis of organization. 

A possible counterargument is that the requirement of organization is intended 
to allow for enforcement of IHL. However, such an assertion confuses a require- 
ment of organization for the purposes of prisoner of war status and for qualifica- 
tion as a party to the conflict with the norms applicable to targeting. As noted in the 
Interpretive Guidance, 

it would contradict the logic of the principle of distinction to place irregular armed 
forces under the more protective legal regime afforded to the civilian population 
merely because they fail to . . . conduct their operations in accordance with the laws and 
customs of war. Therefore, even under the terms of the Hague Regulations and the 
Geneva Conventions, all armed actors showing a sufficient degree of military organiza- 
tion and belonging to a party to the conflict must be regarded as part of the armed 
forces of that party. 53 

The difficult case lies between these extremes, that of an informal grouping of 
individuals who act with shared purpose. For instance, they access a common 
website containing tools and vulnerable targets but do not coordinate their attacks. 
Whether a group of this nature meets the organization criterion should depend on 
such context- specific factors as the existence of a formal or informal leadership en- 
tity directing the group's activities in a general sense, identifying potential targets 
and maintaining an inventory of effective hacker tools. In most cases, collective ac- 
tion alone would not satisfy the organization criterion. However, as activities be- 
gan to resemble those of a cooperative group, it is increasingly likely that States 
would treat said group as an "armed force," rather than a collection of civilian 
direct participants. 

An organized group must also be "armed" to qualify as an armed force. The log- 
ical construction of "armed" is that the group carries out "attacks," as that term is 
understood in IHL. After all, while certain members of the armed forces, or even 
certain components thereof, may have no "violent" function, the concept of armed 
forces makes no sense in the absence of a group purpose of violence. This interpre- 
tation is further supported by the notion of "combatants" (who enjoy the belliger- 
ent privilege of attacking lawful targets) since they are also defined as members of 
the armed forces. 54 Without a group purpose of engaging in attacks, whether cyber 
or kinetic, the members of an organized virtual group remain civilians to whom the 
rules of direct participation apply. Accordingly, a group that conducts cyber opera- 
tions not amounting to attacks (whether directed at military or civilian targets) is 
but a collection of civilians. To the extent the activities of individual members of 
the group constitute direct participation in hostilities, they become targetable. Of 

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Cyber Operations and the Jus in Bello: Key Issues 



course, the reach of the adjective "armed" depends on the interpretation adopted 
vis-a-vis the term "attack." 

The Interpretive Guidance adds two qualifiers to the notion of organized armed 
groups, both of which have proven controversial. First, in order to be treated as the 
armed forces, the group must "belong to a party to the conflict," which requires "at 
least a de facto relationship" between the group and a party to the conflict. 55 The re- 
lationship can be either declared or "expressed through tacit agreement or conclu- 
sive behaviour that makes it clear for which party the group is fighting." 56 This 
requirement has correctly been criticized on the basis that the critical issue in tar- 
geting is not the entity for whom the potential target is fighting, but rather against 
whom that group is engaged in hostilities. However, assuming for the sake of anal- 
ysis that the requirement applies, it would exclude those organized armed groups 
in an international armed conflict that might be directing cyber attacks against one 
of the parties for reasons other than support of the opposing party. According to 
the ICRC, such attacks might nevertheless amount to a separate non-international 
armed conflict between the group and the target State, although this approach has 
equally been the subject of criticism. 57 Presumably, the criterion would also ex- 
clude patriotic hacker groups unaffiliated with one of the belligerent parties, even if 
conducting cyber attacks for its benefit, because the group's activities would lack 
the "agreement" of that party and its actions would in no other way be attributable 
to the party under the law of State responsibility. 58 

The second qualifier found in the Interpretive Guidance is that only members of 
an organized armed group who have a "continuous combat function" qualify as 
members of the armed forces for targeting purposes. 59 A continuous combat func- 
tion is a duty that would meet the requirements of direct participation if the indi- 
vidual concerned was not a group member. Whether group members engaged in 
cyber operations have a continuous combat function depends on application of the 
direct participation criteria set forth below. 

This criterion is controversial, with critics arguing that it affords greater protec- 
tion to members of organized armed groups, who enjoy no right to engage in hos- 
tilities, than official members of the armed forces, who do. 60 As a general matter the 
criterion is no more compelling in the cyber context than in that of physical opera- 
tions. This is so because it derives from concern over the possible difficulty of dis- 
tinguishing group members from civilians on the battlefield. 61 This prospect is 
especially likely during cyber operations, in which the identity of those who have 
launched an operation may be uncertain or where the military and civilian cyber 
communities share networks and transmission assets. Yet, difficult as distinction 
may sometimes be, IHL already contains a presumption of civilian status in the 
case of doubt, thereby obviating the need to impose the continuous combat 



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Michael N. Schmitt 



function criterion. 62 That presumption would apply equally to those engaging in 
cyber hostilities. 

In the case of Georgia, there appear to have been no organized armed cyber 
groups. The attacks do not seem to have been coordinated, nor is there any com- 
pelling evidence of an overarching group structure. Further, the attacks were not 
"armed" in the sense that they did not cause physical damage to property or injury 
to individuals. Therefore, individuals engaged in conducting them would at most 
have qualified as direct participants in hostilities, who may have been targeted for 
such time as they directly participated. 

The key issues regarding direct participation surround 1 ) the nature of direct 
participation and 2) the duration of the "for such time" window. The Interpretive 
Guidance suggests three cumulative constitutive elements that must be present be- 
fore an act amounts to direct, as distinct from indirect, participation in hostilities. 
First, the act must "be likely to adversely affect the military operations or military 
capacity of a party to an armed conflict, or, alternatively, to inflict death, injury or 
destruction on persons or objects protected against direct attack" (threshold of 
harm). Second, "there must be a direct causal link between the act and the harm 
likely to result either from that act, or from a coordinated military operation of 
which that act constitutes an integral part" (direct causation). Finally, the act must 
be specifically designed to "directly cause the required threshold of harm in support 
of a party to the conflict and to the detriment of another" (belligerent nexus). 63 In 
the cyber context, any act that directly impedes a belligerent's military operations 
or capabilities or constitutes an attack on protected persons or objects would qual- 
ify as direct participation so long as a nexus existed between the act and the armed 
conflict. Examples would include cyber military intelligence gathering, disrupting 
enemy cyber networks and manipulating data in the enemy's military systems. 

These requirements are generally deemed acceptable, although disagreement 
does exist at their margins. 64 For instance, it has been suggested that the "thresh- 
old of harm" criterion be extended to include operations designed to enhance 
one's own capabilities. An example would be developing cyber defenses or identi- 
fying cyber vulnerabilities in military cyber systems. The second element, causal- 
ity, is equally necessary, but many critics of the Guidance took issue with its 
example of assembling improvised explosive devices as indirect causation. Similar 
objections would be raised if the analogous case of developing software specific to 
a particular cyber operation or enemy system were characterized as indirect, vice 
direct, causation. 

The major issue presented by the Interpretive Guidance centered on the meaning 
of the phrase "for such time," referring to the period during which a direct partici- 
pant is susceptible to lawful attack. The phrase has long been the subject of 

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Cyber Operations and the Jus in Bello: Key Issues 



controversy, with critics alleging that it created a "revolving door." 65 In other 
words, while a direct participant is deploying to and from an operation, he may be 
attacked. However, once he successfully returns home he regains the full immunity 
from attack that civilians enjoy, at least until such time as he deploys again to di- 
rectly participate in hostilities. Although the ICRC has argued that this dynamic is 
not a malfunction of IHL, 66 critics point out that it creates an imbalance between 
the direct participant and the member of the regular armed forces, since the latter is 
open to attack at any time based solely on his status. In the view of the critics, these 
individuals should be deemed to be directly participating for such time as they reg- 
ularly engage in acts of hostilities; there should be no periods of immunity from at- 
tack between the qualifying acts. 

Cyber operations bring this issue into even greater focus. First, there may be 
no "deployment" at all since only a computer, and not proximity to the target, is 
required to mount the operations. The restrictive interpretation of the for such 
time criterion would suggest that the direct participant can only be attacked while 
actually launching the operation. This is problematic in that many cyber opera- 
tions last mere minutes, perhaps only seconds. Such a requirement would effec- 
tively extinguish the right to strike at direct participants. Moreover, the effect of a 
cyber operation may be long-delayed, as in the case of a surreptitiously emplaced 
logic bomb. Would the target of such an operation only be entitled to attack the 
direct participant while the logic bomb is being emplaced? The problem is that the 
very point of these operations is to avoid detection. Therefore, from a practical per- 
spective, there would appear to be no window of opportunity for the victim of an 
attack to respond. In the cyber conflict environment, therefore, the only reason- 
able interpretation of "for such time" is that it encompasses the entire period dur- 
ing which the direct cyber participant is engaging in repeated cyber operations. 

Cyber Operations as Armed Conflict 

Cyber operations are a particularly attractive means of targeting an opponent, for 
the technology necessary to conduct them is cheap and accessible. In particular, 
they represent an effective method for a weaker State to strike at a technologically 
more advanced, and therefore more vulnerable, adversary. But do cyber operations 
comprise "armed conflict," as that term is used in IHL? This is "the" threshold 
question, for IHL does not apply in the absence of armed conflict. 

When cyber operations are merely one aspect of an ongoing armed conflict, 
they must comport with the IHL applicable to that category of armed conflict. For 
instance, because the conflict between Russia and Georgia was international in 
character, the ensuing cyber operations were subject to the law of international 

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Michael N. Schmitt 



armed conflict. Any operations qualifying as attacks under that body of law would, 
if directed at civilians, constitute violations of IHL and war crimes. 

The difficult case involves cyber operations that take place in the absence of 
kinetic hostilities. Can they constitute an armed conflict, and, if so, what type? Un- 
fortunately, IHL treaty law does not define the phrase "armed conflict" per se. 
Rather, it only expands on the two subcategories of armed conflict, international 
and non-international armed conflict. 

As to international armed conflict, Common Article 2 to the four 1949 Geneva 
Conventions is traditionally viewed as the proper articulation of the scope of inter- 
national armed conflict: "all cases of declared war or of any other armed conflict 
which may arise between two or more of the High Contracting Parties." 67 In ex- 
plaining the article's reach, the ICRC's commentary thereon notes that 

[a]ny difference arising between two States and leading to the intervention of members 
of the armed forces is an armed conflict within the meaning of Article 2, even if one of 
the Parties denies the existence of a state of war. It makes no difference how long the 
conflict lasts, how much slaughter takes place, or how numerous are the participating 
forces. 68 

The International Criminal Tribunal for the former Yugoslavia (ICTY) has like- 
wise opined that "an armed conflict exists whenever there is resort to force between 
States." 69 

This threshold must not be confused with that of an "armed attack," the condi- 
tion precedent for acts in self-defense under the jus ad bellum. 70 The International 
Court of Justice (ICJ) described armed attacks in the Nicaragua case as involving 
certain "scale and effects," which excluded "a mere frontier incident." 71 Under 
IHL, however, an "international armed conflict" commences whenever an armed 
exchange between States occurs, regardless of the scale and effects of the hostilities. 

Applied to cyber operations, it is clear that any operation by or attributable to a 
State that results in damage to or destruction of objects or injury to or death of in- 
dividuals of another State would commence an international armed conflict. This 
is because they constitute attacks under IHL. More problematic from a classifica- 
tion of conflict point of view are cyber operations causing no damage or injury, but 
instead merely inconvenience, disruption, disorder or irritation. The results of 
such operations might nevertheless be severe, as in significant interference with the 
economy, transportation system or other critical infrastructure. 

One possibility is to limit international armed conflict to situations in which 
"attacks" have occurred. Since attacks are "acts of violence," 72 doing so would 
comport with the fact that IHL only applies once a conflict is "armed," as well as 



103 



Cyber Operations and the Jus in Bello: Key Issues 



with the ICRC Commentary's reference to intervention by the armed forces. Al- 
though uncontested occupation and detention also constitute armed conflict while 
harming neither persons nor objects, 73 they both rely on the possibility of enforce- 
ment through the use of force. By this interpretation, non-destructive computer 
network exploitation, espionage, denial of service attacks and other invasive but 
non-destructive cyber operations would not initiate an armed conflict. The di- 
lemma is that in practice States targeted by non-destructive, yet otherwise severe, 
attacks might treat the operations as armed conflict that justified, for instance, ki- 
netic attacks on their enemies' military objectives and combatants. 

A second possibility for classification of events involving cyber operations is one 
based on the more liberal Dormann definition of attacks, which includes opera- 
tions targeting civilians and civilian objects irrespective of whether they were phys- 
ically damaged or injured. Because directing operations against protected persons 
or objects constitutes an attack by this interpretation, an international armed con- 
flict would commence once a State or those under its control launched them. How- 
ever, the position is arguably over-inclusive in that by focusing on the target of an 
operation, it has no means to distinguish non-destructive "attacks" from non- 
destructive military operations that fail to qualify as attacks, such as lawful psycho- 
logical operations directed at the civilian population. 

Both approaches have merit, the former in its fidelity to received understand- 
ings of IHL, the latter in that it would respond to concerns that the traditional un- 
derstanding is under-inclusive since it admits of highly disruptive cyber operations 
to which IHL would not apply. As it stands, though, the former represents lex lata, 
the latter lexferenda. 

A major complication is the current prevalence of cyber operations by non- 
State actors, as in the case of the Georgia-Russia conflict. Such actions will typically 
take on the character of the kinetic conflict under way and be dealt with by the rele- 
vant rules of targeting, especially those governing direct participation by civilians 
in hostilities. However, a classification dilemma arises when cyber operations are 
conducted by non-State actors in the absence of related kinetic operations. 

The issue of attribution of a non-State actor's acts to a State is complex. The tra- 
ditional test was set forth by the International Court of Justice in the Nicaragua 
case. There, the Court articulated the "effective control" test. It held that 

United States participation, even if preponderant or decisive, in the financing, organiz- 
ing, training, supplying and equipping of the contras [Nicaraguan guerrillas], the selec- 
tion of its military or paramilitary targets, and the planning of the whole of its 
operation, is still insufficient ... for the purpose of attributing to the United States the 
acts committed by the contras .... All the forms of United States participation men- 
tioned above, and even the general control by the respondent State over a force with a 

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Michael N. Schmitt 



high degree of dependency on it, would not in themselves mean, without further evi- 
dence, that the United States directed or enforced the perpetration of the acts contrary 
to human rights and humanitarian law alleged by the applicant State. Such acts could 
well be committed by members of the contras without the control of the United States. 
For this conduct to give rise to legal responsibility of the United States, it would in 
principle have to be proved that that State had effective control of the military or para- 
military operations in the course of which the alleged violations were committed. 74 

This test was reaffirmed by the Court in the Congo and Genocide cases. 75 However, 
although the test is often cited with regard to conflict classification, the actual issue 
in Nicaragua was State responsibility for alleged actions of the contras. 

By contrast, the Appeals Chamber of the ICTY dealt with the issue of conflict 
classification directly in Tadic. Explicitly rejecting the effective control test, it held 
that the authority of the Federal Republic of Yugoslavia over the Bosnian Serb armed 
groups "required by international law for considering the armed conflict to be in- 
ternational was overall control going beyond the mere financing and equipping of 
such forces and involving also participation in the planning and supervision of 
military operations." 76 

The debate over the applicable standard remains unsettled. Nevertheless, there 
is no question but that a State may be responsible for the actions of non-State ac- 
tors and that such responsibility may result in the existence of an international 
armed conflict. Therefore, when a State directs particular cyber attacks by non- 
State actors {Nicaragua) or (perhaps) participates in general planning and supervi- 
sion (Tadic) of such attacks, an international armed conflict comes into being be- 
tween the target State and the State exercising control over the attackers. By 
contrast, no armed conflict commences when a State simply tolerates or sympa- 
thizes with cyber attacks emanating from its territory, although the State may be in 
breach of its international legal obligation to "police" its territory to ensure it is not 
used to the detriment of other States. 77 

Determining whether a cyber operation conducted in the absence of kinetic 
operations comprises non-international armed conflict is more challenging still. 
Common Article 3 to the Geneva Conventions styles non-international armed 
conflicts as those that are "not of an international character." 78 Specifically, non- 
international armed conflict is that which occurs between a State and organized 
armed groups or between such groups. Two criteria exist — organization and 
intensity. 

Organization has been dealt with earlier with regard to qualification as an orga- 
nized armed group vis-a-vis the rules of direct participation. The criterion would 
rule out any attacks mounted by either individual "hackers" or groups of hackers 
who lack the necessary degree of organization as non-international armed conflict. 

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Cyber Operations and the Jus in Bello: Key Issues 



Such attacks would therefore be governed by domestic criminal law and human 
rights norms, not IHL. As to "virtually" organized groups, the analysis set forth 
above would apply. To the extent the group in question qualified as an organized 
armed group, the first criterion for non-international armed conflict would be met. 

Non-international armed conflicts must also evidence a certain degree of inten- 
sity. Unlike international armed conflict, non-international armed conflict re- 
quires more than mere limited hostilities. In particular, "internal disturbances and 
tensions, such as riots, isolated and sporadic acts of violence and other acts of a 
similar nature" are excluded from the ambit of such conflict. 79 According to the 
ICTY in the Tadic case, non-international armed conflicts involve "protracted 
armed violence between governmental authorities and organized armed groups or 
between such groups within a State," 80 a definition embraced by the International 
Criminal Tribunal for Rwanda and present in the Statute of the International 
Criminal Court. 81 

This criterion would keep most cyber attacks (in the absence of kinetic opera- 
tions) from qualifying as non-international armed conflict. In particular, the pro- 
tracted requirement would rule out individual or sporadic attacks irrespective of 
their destructiveness. Moreover, non-destructive cyber operations would, as dis- 
cussed, be unlikely to even qualify as armed conflict at all. Given the intensity crite- 
rion, they certainly would not with regard to non-international armed conflict. 
The result is that cyber attacks conducted against a State must be quite intense be- 
fore constituting a non-international armed conflict. 

It should finally be noted that, although Additional Protocol II also addresses 
non-international armed conflict for States party thereto, it only applies when an 
organized armed group involved in the conflict "exercise [s] such control over a 
part of a State's territory that it can "carry out sustained and concerted military 
operations." 82 Obviously, a group conducting solely cyber operations against a 
State would fail to meet this requirement. 

Concluding Thoughts 

This article has but scratched the surface of the many problematic issues surround- 
ing application of IHL to cyber operations. Three were singled out for attention 
and of these none was fully resolved. The dilemma is that IHL was crafted during a 
period in which the cyber operations were but science fiction. However, today no 
modern military enters the battlespace without at least some reliance on comput- 
ers and computer networks. For the modern military, cyber capabilities represent 
both force multipliers and vulnerabilities. And as demonstrated in the case of the 
Georgia-Russia conflict, civilian cyber assets are an especially attractive target set, 

106 



Michael N. Schmitt 



not only for militaries, but also for individuals or groups intent on involvement in 
the conflict in question. 

IHL must respond to the challenges posed by this new technology. The past de- 
cade has witnessed numerous efforts, in particular by the Naval War College, to 
identify challenges posed by cyber warfare to the extant norms of IHL, and to inter- 
national law more generally. 83 Today, practitioners and scholars are increasingly 
sensitive to the challenges, such as those set forth in this article, of applying IHL to 
cyber operations. 84 Hopefully, the next decade will witness their resolution by the 
legal, operational and policy communities. 

Notes 

1. see, e.g., european union, independent international fact-finding mission 
on the Conflict in Georgia, Report (2009). 

2. On cyber operations during the conflict, see ENEKEN TlKK, KADRI KASKA & LlIS VlHUL, 
International Cyber Incidents: Legal Considerations 63-90 (2010). 

3. Under direction of the author. 

4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts art. 48, June 8, 1977, 1125 U.N.T.S. 3 
[hereinafter AP I]. 

5. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, U 
78 (July 8). 

6. API, supra note 4, art. 51.2. 

7. Id, art. 51.4. 

8. Id., art. 51.7, 

9. Id., art. 51.5(a). 

10. Id., art. 51.5(b). 

11. Id, arts. 52.1 & 52.2. 

12. Id., art. 54.2. 

13. Id., art. 55.2. 

14. Id., art. 56.1. The protection extends, in specified circumstances, to "installations erected 
for the sole purpose of defending the protected works or installations from attacks." Id., art. 56.5. 

15. Id, art. 56.1. Note that Article 56 sets forth certain circumstances in which the special 
protection ceases. Id., art. 56.2. 

16. Id, art. 57.1. 

17. Id., art. 57.2(a)(i). 

18. Id., art. 57.2(a)(ii). 

19. Id., art. 57.2(a)(iii). 

20. Id, art. 57.2(b). 

21. Id, art. 57.2(c). 

22. Id, art. 57.3. 

23. Id, art. 57.5. 

24. Id, art. 58. 

25. Id., art. 12. By reference, arts. 21 & 23. 

26. Id, arts. 41.1 & 42.1. 



107 



Cyber Operations and the Jus in Bello: Key Issues 



27. Id., art. 44.3. 

28. Id., art. 59.1. 

29. Id., art. 49. For an example of the definition in a non-AP I treatment of the subject, see 
Harvard Program on Humanitarian Policy and Conflict Research, Commentary on 
the HPCR Manual on International Law Applicable to Air and Missile Warfare rule 
1(e) (2009), available at http://ihlresearch.org/amw/Commentary%20on%20the%20HPCR 
%20Manual.pdf [hereinafter AMW Manual]. 

30. Commentary on the Additional Protocols of 8 June 1977 to the Geneva 
CONVENTIONS OF 12 AUGUST 1949, ^ 1875 (Yves Sandoz, Christophe Swinarski & Bruno 
Zimmermann, eds., 1987) [hereinafter AP COMMENTARY]. 

31. MICHAEL BOTHE ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS 289 ( 1982). 

32. AP COMMENTARY, supra note 30, ^ 1880. 

33. Vienna Convention on the Law of Treaties art. 31( 1), May 23, 1969, 1 155 U.N.T.S. 331. 

34. AP I, supra note 4, arts. 51.1 & 51.2. 

35. Id., arts. 51.5(b), 57.2(a)(iii) & 57.2(b). 

36. W.,art. 57.2(a)(ii). 

37. Id., art. 57.2(c). 

38. Id., art. 57.3. 

39. Id., art. 57.4. 

40. Id., arts. 35.3 and 55.1. 

41. Id., art. 56.1. 

42. BOTHE ET AL., supra note 31, at 288. 

43. Knut Dormann, Applicability of the Additional Protocols to Computer Network Attacks 
(Paper delivered at the International Expert Conference on Computer Network Attacks and the 
Applicability of International Humanitarian Law, Stockholm, Nov. 17-19, 2004), http://www 
.icrc.org/web/eng/siteeng0.nsf/htmlall/68lg92?opendocument. 

44. AP I, supra note 4, art. 52.2. 

45. Dormann, supra note 43. 

46. BOTHE ET AL., supra note 31, at 325. 

47. Id. 

48. US Navy, Marine Corps 8c Coast Guard, The Commander's Handbook on the Law of 
Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7A1J 8.2 (2007). Examples 
of war-sustaining objects include "economic objects of the enemy that indirectly but effectively 
support and sustain the enemy's war-fighting capability." Id., 1 8.2.5. 

49. AP I, supra note 4, art. 51.3; Protocol Additional to the Geneva Conventions of 12 August 
1949, and Relating to the Protection of Victims of Non-International Armed Conflicts art. 13.3, 
June 8, 1977, 1 125 U.N.T.S. 609 [hereinafter AP II]. On the customary nature of the norm, see 
I Customary International Humanitarian Law rule 6 (Jean-Marie Henckaerts & Louise 
Doswald-Beck eds., 2005); AMW Manual, supra note 29, rules 28-29; MICHAEL N. SCHMITT, 
Charles H.B. Garraway & Yoram Dinstein, The Manual on the Law of Non- 
International Armed Conflict with Commentary rule 1.2.2 (2006). 

50. Nils Melzer, International Committee of the Red Cross, Interpretive 
Guidance on the Notion of Direct Participation in Hostilities under Inter- 
national Humanitarian Law 16 (2009) [hereinafter IG]. 

5 1 . See, e.g., Bill Boothby, "And for Such Time As": The Time Dimension to Direct Participation 
in Hostilities, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 741 
(2010); W. Hays Parks, Part IX of the ICRC "Direct Participation in Hostilities" Study: No Man- 
date, No Expertise, and Legally Incorrect, supra at 769 (2010); Michael N. Schmitt, Deconstructing 



108 



Michael N. Schmitt 



Direct Participation in Hostilities: The Constitutive Elements, supra at 697 (2010); Kenneth 
Watkin, Opportunity Lost: Organized Armed Groups and thelCRC "Direct Participation in Hostil- 
ities" Interpretive Guidance, supra at 641 (2010); Michael N. Schmitt, The Interpretive Guidance 
on the Notion of Direct Participation in Hostilities: A Critical Analysis, 1 HARVARD NATIONAL 
Security Journal 5 (2010). 

52. AP COMMENTARY, supra note 30, 1 1672. 

53. IG, supra note 50, at 22. 

54. AP I, supra note 4, art. 43.2. 

55. IG, supra note 50, at 23. 

56. Id. 

57. Mat 24. 

58. Id. at 23. 

59. Mat 26, 33. 

60. Since a member of an organized armed group without a combat function would not 
be targetable, while a member of the armed forces without such a function would be subject to 
attack. 

61. IG, supra note 50, at 33. 

62. API, supra note 4, art. 50.1. 

63. IG, supra note 50, at 16-17. 

64. See generally Schmitt, Deconstructing, supra note 5 1 . 

65. See, e.g., W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1,118 
(1990). 

66. IG, supra note 50, at 70. 

67. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed 
Forces in the Field art. 2, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31; Convention for the Ame- 
lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 
art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of 
Prisoners of War art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the 
Protection of Civilian Persons in Time of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 
287 [hereinafter GC I-IV] . 

68. COMMENTARY TO GENEVA CONVENTION III RELATIVE TO THE TREATMENT OF 
PRISONERS OF WAR 23 (Jean Pictet ed., 1960) [hereinafter GC-III COMMENTARY]. 

69. Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Decision on the Defence 
Motion for Interlocutory Appeal on Jurisdiction, ^ 70 (Int'l Crim. Trib. for the Former Yugosla- 
via Oct. 2, 1995). See also Prosecutor v. Kunarac, Case No. IT-96-23/1-A, Judgment, fflf 56-57 
(Int'l Crim. Trib. for the Former Yugoslavia June 12, 2002); Prosecutor v. Milosevic, Case No. 
IT-02-54-T, Decision on Motion for Judgment of Acquittal, ffif 15-17 (Int'l Crim. Trib. for the 
Former Yugoslavia June 16, 2004). 

70. U.N. Charter art. 51. 

71. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 
14, J 195 (June 27). This standard has been subject to careful parsing {see, e.g., Oil Platforms (Iran 
v. U.S.), 2003 I.C.J. 161, f 72 (Nov. 6)), and criticized by commentators (see, e.g., YORAM 
DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 194-96 (4th. ed. 2005); William Taft, Self- 
defense and the Oil Platforms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 295, 300 
(2004)). 

72. AP I, supra note 4, art. 49; AMW Manual, supra note 29, rule 1(e). 

73. Article 2 of the Geneva Conventions extends to cases of "partial or total occupation . . . 
even if said occupation meets with no armed resistance." GC I-IV, supra note 67, art. 2( 1 ). Similarly, 



109 



Cyber Operations and the Jus in Bello: Key Issues 



when the forces of a State detain individuals protected by IHL (especially members of the oppo- 
nent's armed forces), an armed conflict exists. GC-III COMMENTARY, supra note 68, at 23. 

74. Military and Paramilitary Activities, supra note 71, ^ 1 15 (June 27). See also discussion at 
paragraph 109. 

75. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 
I.C.J. 1 16, 1 160 (Dec. 19); Application of the Convention on the Prevention and Punishment of 
the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J. 9141 391-92 (Feb. 26). 

76. Prosecutor v. Tadic, Case No. IT-94- 1 -A, Appeals Chamber Judgment, H 145 (Int'l Crim. 
Trib. for the Former Yugoslavia July 15, 1999) (emphasis added). 

77. The ICJ affirmed this principle in Corfu Channel, its first case. The Court held that every 
State has an "obligation to not allow knowingly its territory to be used for acts contrary to the 
rights of other States." Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9). 

78. GC I-IV, supra note 67, "Common" art. 3. 

79. AP II, supra note 49, art. 1.2. The limitation is generally deemed to reflect the standard 
applicable to Common Article 3 and in customary international law. See, e.g., Statute of the In- 
ternational Criminal Court art. 8(2)(f), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome 
Statute]. 

80. Tadic, supra note 69, 1J 70. 

81. Prosecutor v. Akeyesu, Case No. ICTR-96-4-T, Judgment, If 619 (Sept. 2, 1998); Rome 
Statute, supra note 79, art. 8(2) (f). 

82. AP II, supra note 49, art. 1.1. It must also be able to implement the provisions of the 
Protocol. 

83. The first conference on the subject was hosted by the Naval War College in June 1999. 
The proceedings were published as COMPUTER NETWORK ATTACK AND INTERNATIONAL LAW 
(Michael N. Schmitt 8c Brian T. O'Donnell eds., 2002) (Vol. 76, US Naval War College Interna- 
tional Law Studies). 

84. See, e.g., COMMITTEE ON DETERRING CYBERATTACKS: INFORMING STRATEGIES AND 

Developing Options for U.S. Policy, National Research Council, Proceedings of a 
Workshop on Deterring Cyberattacks: Informing Strategies and Developing 
Options for U.S. Policy 151-78 (2010). 



110 



PART IV 



LUNCHEON ADDRESS 



VI 



Who May Be Held? Military Detention 
through the Habeas Lens 

Robert M. Chesney* 



Who lawfully may be held in military custody without criminal charge? It 
seems a simple question, and in some settings it is. But in the settings 
that matter most at the moment — counterterrorism and counterinsurgency — it is 
not simple at all. The very metrics of legality are disputed in those contexts, with 
sharp disagreement regarding which bodies of law are relevant and what if any- 
thing each actually says about the detention-scope issue. 

This problem has been with us for some time. It has lurked in the background of 
US detention operations in Afghanistan since 2001 l and in Iraq since 2003. 2 It is 
central, of course, to the controversies surrounding the use of detention at Guan- 
tanamo and in the United States itself. 3 More than one hundred thousand individ- 
uals have been detained without criminal charge across these settings, 4 giving rise 
to an immense amount of scholarship, advocacy and litigation along the way. Re- 
markably, however, the question of who lawfully may be detained remains 
unsettled in important respects. 



* Charles I. Francis Professor in Law, University of Texas School of Law. I am grateful to the or- 
ganizers and participants at the Naval War College's annual conference for their comments and 
criticisms, to the Office of the General Counsel of the Department of Defense for the opportunity 
to present this work in progress, and to Daniel Jackson for outstanding research assistance. A 
longer version of this article appears in the Boston College Law Review (forthcoming 201 1). 



Who May Be Held? Military Detention through the Habeas Lens 

The problem exists along two distinct dimensions, only one of which do I ad- 
dress in this article. First, we have indeterminacy at the group level insofar as there 
is disagreement with respect to whether any authority to use military detention 
that the US government may currently possess extends to any entities other than al 
Qaeda and the Taliban, and also insofar as there is disagreement regarding which 
entities are sufficiently affiliated with al Qaeda or the Taliban so as to be indistin- 
guishable from them for purposes of this inquiry. 5 Even if we had agreement re- 
garding which groups are relevant for purposes of the detention issue, however, 
indeterminacy also manifests at the individual level insofar as we also lack agree- 
ment regarding the mix of conditions that are necessary or sufficient to justify the 
detention of a particular person. My aim in this article is to shed light solely on this 
individualized set of questions. 

That we lack consensus with respect to individualized detention criteria and 
constraints despite nearly a decade's worth of litigation and debate to some extent 
reflects our preoccupation with other questions associated with military deten- 
tion, above all the seven years' war over the habeas jurisdiction of federal courts 
in relation to the Guantanamo detainees. 6 Yet even prior to the resolution of that 
jurisdictional dispute in the Supreme Court's 2008 decision in Boumediene v. 
Bush, 7 courts did have several occasions to address the detention-scope issue; they 
just did not develop a consensus as a result. On the contrary, they splintered 
sharply in those cases, advancing an array of incompatible views regarding the ap- 
plicable law. 8 

Matters have improved to some extent in the aftermath of Boumediene. 9 Many 
district and circuit court judges have had a chance to address who lawfully may be 
detained in the context of the Guantanamo habeas litigation. Their decisions re- 
flect a consensus that the government does have authority to detain without crim- 
inal charge in at least some circumstances, and that (at least for most of the judges) 
these circumstances at a minimum include at least some scenarios involving per- 
sons who are "part of al Qaeda or the Taliban (whether the consensus extends to 
membership in other groups is much less clear). But beyond these points disagree- 
ment reigns. 

Whether a person is "part of a group may be an administrable inquiry in the 
context of a regular armed force, but it does not map easily onto scenarios involv- 
ing clandestine non-State actors with indistinct and unstable organizational struc- 
tures. As a result, judges who agree that members of such groups may be detained 
do not necessarily agree as to what conduct actually counts as membership in this 
context. And the judges most definitely have not reached consensus with respect to 
whether detention lawfully may be used in the distinct situation in which a non- 
member provides support to these groups. Indeed, the executive branch itself now 

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Robert M. Chesney 



appears divided on the propriety of using support as a stand-alone detention predi- 
cate. Perhaps most remarkably, an apparent consensus as to the relevance of the 
laws of war to these questions recently came unglued, with a divided panel of the 
D.C. Circuit Court of Appeals declaring that the matter should turn exclusively on 
domestic law considerations 10 and a subsequent assertion by a majority of the ac- 
tive judges of that court in turn declaring that assertion to be dicta. 11 

All of which is interesting in the seminar setting, but does any of it actually mat- 
ter in practice? That is not a frivolous question. By and large the merits determina- 
tions in the Guantanamo habeas cases have turned on the sufficiency of the 
government's evidence (or lack thereof), and not on the legal boundaries of the 
government's notional detention authority. 12 For better or worse, moreover, habeas 
jurisdiction has not (yet) been extended to overseas military detention operations 
involving non-citizens at locations other than Guantanamo, 13 and thus one might 
be tempted to conclude that any problems resulting from the judiciary's persistent 
inability to resolve the detention-scope question will be confined to a finite and 
shrinking set of cases. 

In fact, the question of who lawfully maybe detained matters a great deal in ac- 
tual practice. As a threshold matter, the two premises mentioned above may prove 
to be incorrect. Much Guantanamo habeas litigation is yet to come, and it may well 
be that future cases will turn on this very issue. Similarly, the precise boundaries of 
habeas jurisdiction have not yet been fixed; though currently jurisdiction does not 
extend to Afghanistan, that question remains the subject of live litigation. 14 Even if 
those premises remain valid, however, other considerations ensure the relevance of 
the detention-scope question. 

First, the answers judges give to this question have spillover effects beyond the 
immediate context of habeas. 15 They overhang any other detention operations 
conducted under the rubric of the same underlying detention authority, regardless 
of whether those operations are subject to judicial review; government and military 
lawyers will not simply ignore judicial pronouncements regarding the scope of that 
authority, and may be expected to advise commanders and policymakers accord- 
ingly. By the same token, judicial decisions regarding the notional scope of deten- 
tion authority may apply by extension to questions of targeting with lethal force in 
the field pursuant to that same authority, notwithstanding that targeting decisions 
ordinarily are not directly subject to judicial review. 16 Future conflicts unrelated to 
9/11 may also be impacted. The judges in the habeas litigation at times have in- 
cluded in their analyses interpretations of key terms and concepts from both inter- 
national and domestic law — such as "direct participation in hostilities" and "all 
necessary and appropriate force" — that will be relevant in most if not all future 
armed conflicts. 



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Who May Be Held? Military Detention through the Habeas Lens 

Taking all of this together, we can see that the judges in the habeas litigation are 
not merely deciding whether to grant the writ in particular cases. They have be- 
come, for better or worse, the central US government institution engaged in the 
critical — and ultimately unavoidable — task of tailoring the laws governing mili- 
tary activity to suit the increasingly important scenario in which States classify 
clandestine non-State actors as strategic threats requiring a military response. 

The paper proceeds in three parts. I begin at a high level of abstraction in Part I 
by drawing attention to two strands of debate that greatly complicate the task of de- 
termining whether particular detention criteria are forbidden, required or permit- 
ted by law: (i) disagreement regarding which bodies of law actually apply in a 
particular instance, and (ii) disagreement as to what a particular body of law has to 
say, if anything, when it comes to employing particular criteria in a detention 
standard. 

Against this backdrop, Part II provides a comprehensive descriptive account of 
how judges since 2002 have addressed the question of individual detention criteria, 
emphasizing that which has been settled and that which remains in dispute. In 
brief, judges largely (though not entirely) agree that detention authority lawfully 
extends to persons who are functional members of al Qaeda, the Taliban or associ- 
ated forces, but they do not agree as to what membership means in this setting or 
whether detention authority also extends to non-members who provide support to 
such groups. Part III concludes with a discussion of whether this lingering uncer- 
tainty truly matters (it does, on many levels) and, if so, what should be done about 
it (legislation, preferably). 

L Contested Metrics of Legality 

Nearly a decade has passed since the United States began employing military de- 
tention without criminal charge in circumstances relating to al Qaeda and the 
Taliban. Nonetheless, the question of who lawfully maybe held in that manner — if 
anyone — remains the subject of bitter disagreement. 

Before examining how litigants and judges have attempted to resolve these dis- 
agreements in the habeas setting, it is worth pausing to describe why, at a high level 
of abstraction, the parties to these debates so often appear to be speaking past one 
another. There are two overarching problems that contribute to that state of affairs. 
First, there is disagreement at the threshold with respect to which bodies of law 
actually apply to this question. Should it be answered solely with reference to do- 
mestic law? Law of armed conflict (LOAC)? International human rights law 
(IHRL)? We might call this the "domain" debate. Second, with respect to each of 
these potentially applicable bodies of law, there is disagreement as to what if 

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Robert M. Chesney 



anything it has to say regarding which detention predicates and constraints are 
necessary or permissible. We might call this the "content" debate. 

I do not propose to settle the domain and content debates here, nor even to en- 
gage them in a comprehensive way. Rather, my goal simply is to orient the reader to 
their basic features. Combined with the typology of detention predicates and con- 
straints provided in the preceding Part, this will equip the reader to fully appreciate 
the points of consensus and disagreement emerging from the habeas litigation 
discussed in Part II. 

A. The Domain Debate: Disagreement Regarding Which Bodies of Law Apply 

Which bodies of law are relevant with respect to the detention-scope question? The 
answer to this question of course may depend on the circumstances, and thus it 
may be most accurate to say that there are many answers to it rather than just one. 
But in any event, the candidate legal regimes include domestic law (statutory or 
constitutional), LOAC (or international humanitarian law) and IHRL. 

1. Domestic Law 

At one extreme, the question of who lawfully may be held might require solely a 
domestic law analysis. On this view, for example, one might first consider what the 
September 18, 2001 Authorization for Use of Military Force 17 (AUMF) has to say 
about the topic — or, if you prefer, what might be gleaned from the Constitution as 
a direct source of detention power 18 — and then take note of any other limitations 
that might be derived from the Constitution, other statutes, or prior US caselaw. If 
the government's claim of detention authority is consistent with these sources, the 
debate ends. 

Of course, treaties are part of domestic law in the sense that the Constitution 
makes them supreme law of the land. 19 Thus the "domestic-only" viewpoint does 
not necessarily exclude consideration of LOAC and IHRL instruments. Insofar as 
those treaties are not self- executing or have been "unexecuted" by a subsequent 
statute, however, some argue that they are relevant solely in a diplomatic sense. 20 
At least with respect to IHRL instruments, moreover, the US government has long 
maintained the position that they simply do not apply to US government conduct 
occurring outside of formal US territory. 21 

In any event, the notion of a purely domestic approach to determining the legal 
boundaries of detention authority is no mere academic invention. As we will see in 
Part II below, the D.C. Circuit Court of Appeals adopted precisely this view in its 
January 2010 decision Al-Bihani v. Obama. There are, however, other models. 



117 



Who May Be Held? Military Detention through the Habeas Lens 

2. The Law of Armed Conflict 

The second model accepts the legal rather than just the diplomatic relevance of 
LOAC. On this view, LOAC might matter in either of two ways, one weak and one 
strong. First, on the weak view, LOAC must be considered when interpreting the 
AUMF (or, for that matter, when interpreting the scope of authority conferred 
directly by the Constitution). 22 Consistent with the Charming Betsy canon, for ex- 
ample, one would look to LOAC in order to flesh out the meaning of the AUMF's 
language "all necessary and appropriate force" as it relates to detention. 23 Alterna- 
tively, on the strong view, LOAC might be treated as a legally binding constraint in 
its own right, independent of the best reading of the underlying domestic source 
of authority. 

It is not clear that the difference between the weak and strong models matters in 
the context of the scope-of-detention issue. The difference might matter where the 
underlying domestic source is so clear that there is no occasion for a LOAC-based 
interpretation, thus making the weak but not the strong model inapplicable. But 
that hardly seems to be the case here, given the relative lack of clarity of the domes- 
tic sources involved. Applied in this setting, in other words, both the weak and 
strong models would direct us to look to LOAC to define the scope of the 
government's detention authority. 

All that said, LOAC is not automatically relevant in in all circumstances. It is, 
rather, applicable in circumstances of "armed conflict." 24 In order to determine 
LOAC's field of application, one must identify and define the scope of "armed con- 
flict" — tasks that generate considerable disputes. Some scholars reference func- 
tional criteria involving the duration, intensity and nature of the violence at issue, 25 
while others also emphasize the formal categorization of the asserted "enemy" in 
terms of its status as a "state, nation, belligerent, or insurgent group." 26 Even when 
one accepts that a state of armed conflict justifying application of LOAC exists in 
one particular location, moreover, there is considerable disagreement as to 
whether and when any resulting rules can or must be applied in relation to persons 
in geographically distinct locations. 27 Indeed, it is no exaggeration to say that the 
most fundamental divide separating the legal positions of the Bush and Obama ad- 
ministrations from the views of critics in the international law community has to 
do with the propositions that (i) the activities of al Qaeda rise to the level of armed 
conflict in places other than Afghanistan and (ii) in any event the existence of 
armed conflict in Afghanistan permits reliance on LOAC concepts against al 
Qaeda-related individuals in other locations. 28 



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Robert M. Chesney 



3. International Human Rights Law 

The third model tracks the second, but looks to IHRL rather than LOAC. That is to 
say, one can advance both a weak (interpretation-based) and strong (independent- 
force) model of IHRL's relevance to the scope question. 

Either way, the key point of departure for debate regarding the relevance of 
IHRL involves the question of extraterritoriality. For present purposes, the most 
relevant IHRL treaty is the International Covenant on Civil and Political Rights 
(ICCPR), 29 which, as discussed below, contains language relating to detention. 30 
Article 2 of the ICCPR provides that a member State is bound to confer ICCPR 
protections on persons "within its territory and subject to its jurisdiction." 31 The 
United States has long construed this language literally, such that ICCPR rules gov- 
ern within the United States but not elsewhere. 32 Many other States (including 
many European allies), in contrast, construe that same language to encompass any 
person subject to a member State's practical control regardless of geographic loca- 
tion, as does the UN Commission on Human Rights (now the Human Rights 
Council). 33 An interpretive standoff results, with great risk of outright misunder- 
standing insofar as either side fails to appreciate that the other simply does not 
share its view. 

Even if one accepts the US position regarding the geographically bounded reach 
of the ICCPR, however, IHRL issues might still arise. Not all detentions occur out- 
side US territory, after all. On three occasions after 9/11, for example, the United 
States held persons in military custody within the United States itself. 34 And in the 
wake of the Supreme Court's Rasul and Boumediene decisions emphasizing the 
unique degree of US control at Guantanamo, debate may yet arise as to its status 
vis-a-vis the ICCPR's jurisdictional provision. In any event, treaty law is not the 
only possible source of an IHRL obligation. Customary international law may con- 
tain norms comparable to those found in the ICCPR. The question then becomes 
whether any such norm entails a comparable geographic boundary, and this in 
turn may require inquiry into the existence in the overseas setting of a pattern of 
State practice supported by opinio juris. The room for debate — and hence for 
misunderstanding — is ample. 

4. Deconfliction 

The discussion grows still more complicated once one accounts for the potential of 
the LOAC and IHRL models to overlap and conflict with one another. This poten- 
tial overlap has occasioned an immense amount of scholarship, with some charac- 
terizing the situation as encroachment by IHRL — for good or ill — on the 
traditional domain of LOAC. 35 



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Who May Be Held? Military Detention through the Habeas Lens 

Here we confront the question of lex specialis. In brief, lexspecialis is a choice-of- 
law concept in which the more specifically applicable body of law governs in the 
event of overlap. 36 Unfortunately, a variety of views exists regarding just what that 
concept means in practice — enough to prompt the International Law Commission 
to undertake an effort to clarify the question. 37 The US government, for its part, 
takes the view that LOAC constitutes lex specialis in all circumstances of armed 
conflict, such that it entirely occupies the field to the exclusion of IHRL consider- 
ations. 38 Some have taken a different view, treating lex specialis not as preempting 
all reference to another body of law, but rather as requiring the provisions of a 
competing body of law to be construed in harmony with the rules provided by the 
dominant body of law; IHRL, on that view, would be applicable yet would be 
conformed to LOAC in its particulars. 39 Some might argue for a third position, 
moreover, a rights-maximizing approach in which the controlling rule is which- 
ever one that most advantages the rights of individuals, as opposed to advantag- 
ing the discretion of the State. One might also contend for a specificity-oriented 
approach in which the governing rule is, literally, whichever rule speaks with 
greater specificity to the fact pattern (whether it is more rights-protective or not). 40 
Deconfliction of LOAC and IHRL, in short, requires resolution of a complex and 
entrenched debate. 

As if this were not enough complexity, it is of course possible that the best an- 
swer to the relevant-body-of-law inquiry will vary depending on the circum- 
stances. That is, it may be that in one location LOAC plainly is relevant and IHRL is 
not, while in other locations the reverse is true and in still another location it might 
be that the question turns partially or entirely on domestic law instead. 

B. The Content Debate: Disagreement Regarding the Rules Themselves 

Unfortunately, the opportunities for confusion and disagreement are not confined 
to the threshold determination of which body or bodies of law matter. Even if we 
had consensus on that question, an equally intransigent set of disagreements 
emerges within each domain when we turn to the question of what that body of law 
has to say, if anything, regarding the particular mix of detention predicates and 
constraints that a State can or perhaps must use. 

Note that in the abstract there are several possible outcomes when one seeks to 
determine what rule a particular body of law supplies with respect to the detention- 
scope issue. First, the body of law may provide a determinate and discernible rule 
that is narrower than the scope of detention authority asserted by the government. 
Or the reverse may be true; the rule may permit at least as much detention author- 
ity as the government asserts. One can expect litigants to emphasize one or the 
other of these positions. But there are other possibilities. Most notably, it may be 

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Robert M. Chesney 



that the body of law is simply indeterminate on the question of scope. In that case, 
an important question arises regarding the default state of affairs. Does the absence 
of a rule constitute an absence of affirmative authority for the government to exer- 
cise detention power? Or instead does it constitute an absence of constraint on the 
government's exercise of such powers? This too can be a point of disagreement. Fi- 
nally, it may be that the most complete answer involves a blend of the 
aforementioned possibilities depending on the circumstances. 

1. Domestic Law 

Consider first how these possibilities map onto the domestic law sources relevant 
to the substantive- scope question. One might begin with the September 18, 2001 
AUMF, 41 which introduces a series of interpretive issues. 

The AUMF does not refer expressly to detention. Of course, it also says nothing 
express about killing or any other particular kind of military activity. What it does 
authorize is the use of "all necessary and appropriate force." 42 Thus there is a 
threshold question as to whether it should be read to confer any detention author- 
ity at all. In the case of citizens, moreover, that inquiry is complicated by the exis- 
tence of a 1971 statute — the Non-Detention Act — providing that "[n]o citizen 
shall be imprisoned or otherwise detained by the United States except pursuant to 
an Act of Congress," 43 as well as the Civil War-era precedent Ex parte Milligan in 
which the Supreme Court employed broad language in the course of holding that a 
civilian could not be subjected to a military commission trial where civilian courts 
were open. 44 

Assuming this obstacle is overcome, the next task is to determine against whom 
this authority may be directed. Here, the AUMF does a bit more of the work, as it 
refers to "those nations, organizations, and persons" whom the President deter- 
mines were responsible for the 9/11 attacks, as well as those who harbor such enti- 
ties. 45 The Bush administration exercised this authority by identifying al Qaeda as 
the entity responsible for the attacks and the Taliban as having harbored it, the 
Obama administration has continued that position, 46 and there does not appear to 
be any serious doubt that it was appropriate to do so. Thus it seems settled that the 
AUMF refers at least to al Qaeda and the Taliban. 47 

Even if we had consensus regarding precisely which entities fall within the scope 
of the AUMF, however, we would still have to grapple with disagreement at the 
individual level. The AUMF is entirely silent with respect to the mix of detention 
predicates and constraints that suffice to link a particular person to an AUMF- 
covered group, for purposes of detention or otherwise. 

This is, in fact, typical of AUMFs (and declarations of war, for that matter). 48 Yet 
no one in prior conflicts thought such silence to be significant. Why does it matter 

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Who May Be Held? Military Detention through the Habeas Lens 

so much now? First, most prior conflicts involved nation-States as the enemy; 
hence the question of detention largely arose in relation to enemy soldiers who 
were both readily identifiable (through uniforms and through their overt presence 
on a conventional battlefield) and eager to actually be identified (in order to ensure 
prisoner-of-war (POW) treatment and qualification for the combatant's privilege 
to use force). 49 Second, even where prior conflicts involved a substantial amount of 
hostilities with guerrilla forces — as in Vietnam — the question of how the United 
States resolved any incipient detention issues simply did not receive anything re- 
motely resembling the scrutiny that arises today (let alone litigation). Matters are 
otherwise in relation to the use of detention under the AUMF, to say the least, and 
thus the question of individualized detention predicates and constraints is far 
more significant than in the past. 

No other domestic law sources suffice to prevent debate and disagreement on 
these points. Congress, for its part, has not returned to the question of scope, at 
least not directly. The first post-AUMF legislation to address detention in any sig- 
nificant way was the Detainee Treatment Act of 2005 (DTA), 50 which among other 
things addressed the jurisdiction of federal courts to hear challenges to individual 
detention decisions at Guantanamo. 51 The DTA did not purport to define a sub- 
stantive standard as to who maybe detained, however, but rather invited the D.C. 
Circuit Court of Appeals to consider in particular cases whether the government's 
assertion of detention authority was compatible with the "Constitution and laws of 
the United States." 52 

The Military Commissions Act of 2006 (MCA 2006) came closer. 53 It did not 
purport to define the category of persons subject to detention without charge 
under the AUMF (or otherwise). It did, however, define the personal jurisdiction 
of the military commission system. Specifically, it stated that commissions could 
try cases involving any alien constituting an "unlawful enemy combatant." 54 It 
defined that phrase in turn to encompass any person who is not part of a State's 
regular armed forces (or a militia- type group obeying the traditional conditions of 
lawful belligerency), and who falls into one of three categories: (i) "has engaged in 
hostilities . . . against the United States or its co-belligerents"; (ii) "has purpose- 
fully and materially supported hostilities against the United States or its co- 
belligerents"; or (iii) "is part of the Taliban, al Qaeda, or associated forces." 55 

The MCA 2006 thus introduced a series of necessary and sufficient conditions to 
bring a person within the jurisdiction of the new war-crime trial system — condi- 
tions that were narrowed only slightly with the subsequent passage of the Military 
Commissions Act of 2009 (MCA 2009). 56 The MCA 2009 replaced the verbiage 
"unlawful enemy combatant" with the less baggage-laden phrase "unprivileged en- 
emy belligerent." 57 It kept the criteria relating to participation in hostilities and 

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Robert M. Chesney 



material support of hostilities. 58 It also kept the "part of test, but narrowed it to 
pertain only to al Qaeda — thus omitting the alternative of establishing personal ju- 
risdiction over an individual solely on the ground that he was part of the Taliban or 
an associated force. 59 

The MCA 2006 and MCA 2009 arguably shed some light on the substantive- 
scope question, but for at least two reasons they do not suffice to end debate. First, 
neither statute actually purports to speak to that question. 60 Perhaps they nonethe- 
less do so by implication, on the theory that the boundaries of personal jurisdiction 
in the military commission system must extend at least as far as the boundaries of 
the authority to detain without criminal charge. But it is not obvious that the two 
questions have such a relationship to one another; one might expect the scope of 
personal jurisdiction to be wider than baseline detention authority in some re- 
spects and narrower in others. 

Second, the MCA criteria themselves are underspecified. In terms of predicates, 
the criteria include both past conduct considerations (including both personal in- 
volvement in hostilities and the provision of support to AUMF-covered groups) 
and an associational status test (the "part of test). The "part of test is not further 
calibrated, however, leaving considerable room for disagreement. This is an im- 
portant omission given the diffused, evolving and informal organizational struc- 
ture of non-State actors such as al Qaeda. 61 As for potential constraints, moreover, 
the MCA criteria are silent with respect to considerations of geography and timing. 

Complicating matters, some observers may take the position that the ambiguity 
of these statutes constitutes an implied delegation of authority to the executive to 
provide whatever further criteria maybe required — and perhaps also that the exec- 
utive branch is entitled to deference from the judiciary in the event that its exercise 
of that authority should become subject to judicial review. 62 This too becomes a 
point of departure for debate, as would any claim that the Constitution itself (via 
some combination of Article II powers, presumably) confers some degree of deten- 
tion authority independent of what may be conferred by the AUMF or any other 
statute. As to the latter argument, it suffices to note that the problems of ambiguity 
associated with the language of the AUMF surely arise in equal if not greater 
measure under the Article II authority rubric. 

2. The Law of Armed Conflict 

Assume for the sake of argument that LOAC is relevant in at least some post-9/1 1 
circumstances involving detention. Unfortunately, it too is underspecified when it 
comes to individual detention predicates and constraints. 

When it comes to the scope-of-detention issue, LOAC is most determinate in 
relation to international armed conflict — i.e., an armed conflict involving on each 

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Who May Be Held? Military Detention through the Habeas Lens 

side at least one High Contracting Party to the Geneva Conventions. In that tradi- 
tional setting, the full range of Geneva Convention protections applies, 63 including 
a host of provisions that expressly contemplate the use of non-criminal modes of 
detention in military custody. 

Under the Geneva Convention Relative to the Treatment of Prisoners of War 
(GPW), for example, we find two articles confirming that a State may hold prison- 
ers of war in custody without charge during hostilities. 64 GPW, Article 4, more- 
over, provides a detailed definition as to who qualifies for POW status (and hence 
may be detained without much controversy). Among other things, this includes 
any person who 

(i) is a member of the armed forces of a party; 

(ii) is a member of an irregular unit that obeys the four conditions of lawful 
belligerency (having a command hierarchy, wearing a distinctive sign, 
bearing arms openly and obeying the laws of war); or 

(iii) is a member of regular armed forces belonging to a government that the 
detaining State does not recognize. 65 

The central concept in each instance is membership. And as noted above, the 
concept of membership (or being "part of a group) at least in some contexts can 
be a difficult concept to apply. Not so in this setting, however. The concept of 
membership in structured armed forces presents few definitional issues. The use of 
uniforms and the likelihood that a captured member of such a group willingly will 
concede such status in order to obtain the benefits of POW treatment further 
reinforce clarity. 

When a person does not qualify for POW status in the context of an interna- 
tional armed conflict, it does not follow that he or she cannot be detained without 
criminal charge. On the contrary, the Geneva Convention Relative to the 
Protection of Civilian Persons in Time of War (GC) expressly contemplates a non- 
criminal regime of "security internment" for persons who are not POWs, but 
nonetheless pose a threat to security in relation to an armed conflict. 66 And while 
the security internment provisions of the GC are largely silent with respect to the 
individualized criteria for triggering this authority, the International Committee of 
the Red Cross's commentaries on the GC note that this omission was intentional 
on the part of the drafters, who thought it best to leave the question of scope to the 
discretion of the detaining State — though the commentaries themselves offer the 
opinion that this authority might be applied, as one example, to intern individuals 



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Robert M. Chesney 



based on their membership in a dangerous organization. 67 The GC framework, in 
short, endorses something in the nature of a generalized future dangerousness in- 
quiry, and does not demand particular forms of prior conduct or associational 
status. 

If the question of detention authority arose only in the context of international 
armed conflict, then, the existence and scope of detention authority might gener- 
ate little debate. Of course we might still have debates regarding the labels to be ap- 
plied to detainees, and the resulting benefits to be given them. In the event of a spy 
or saboteur, for example, one might debate whether the person should be treated 
as a POW or a security internee, or perhaps instead placed in an interstitial cate- 
gory for unprivileged belligerents. 68 But there would be little doubt as to the basic 
capacity to detain without charge given the existence of express and sweeping 
treaty language. 

For armed conflicts that are not international in the sense described above, 
however, the situation is quite different. Prior to 1949, no LOAC treaty instrument 
purported to apply beyond the confines of an international armed conflict. The 
1949 Geneva Conventions broke new ground by including a single article — so- 
called "Common Article 3" — imposing a handful of baseline humanitarian 
protections for persons in the hands of the enemy during such conflicts. Additional 
Protocol II subsequently expanded upon those protections (though the United 
States is not party to that instrument). Neither instrument explicitly confers sub- 
stantive detention authority, nor does either purport to limit or deny such 
authority. 

The resulting opportunities for disagreement are considerable. Some construe 
the silence as fatal for any effort to rest the existence of detention authority on 
LOAC, let alone to use LOAC to define the scope of that authority. 69 On that 
view, both authority and definitional scope must derive from other bodies of law 
(domestic, IHRL or both). 70 Others, however, contend that the absence of affir- 
mative constraint is equivalent to an authorization by omission, on the theory 
that LOAC on the whole is best understood to be a restraining body of law. 71 On 
this view, anything that can be done in an international armed conflict a fortiori 
can be done as well during non-international armed conflict — including use of 
the detention principles noted above. 72 Alternatively, some might take the posi- 
tion that some form of affirmative LOAC authority is needed, and that customary 
LOAC supplies it (again by analogy to the forms recognized by treaty in the inter- 
national setting). 73 

For those drawn to either of the latter two arguments, further issues emerge. In- 
sofar as a State seeks to bring to bear detention authority akin to the GPW-based 
power to detain members of the enemy armed force, for example, applying the 



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"membership" concept will not be a simple affair when used in connection with 
relatively disorganized non-State actors such as insurgencies or terrorist networks. 
The POW definition in GPW, Article 4 will not provide much assistance in that cir- 
cumstance, predicated as it is on the assumption of an organized armed force with 
a command hierarchy, uniforms and the like. 

Of course, a State might seek to avoid such definitional difficulties by instead 
analogizing to the more-sweeping detention authority associated with security 
internment under the GC. But the very feature that might make this attractive — 
the lack of any particular substantive criteria — is sure to invite objections. Such 
objections no doubt will be muted if the context involves sustained, large-scale, 
combat violence; the United States employed security internment to detain tens of 
thousands of individuals in Iraq over the years following the international armed 
conflict and occupation phases in 2003 and 2004, without engendering any serious 
objections regarding the existence and scope of its detention authority, and this 
pattern continues on a small scale today long after the expiration of the UN Secu- 
rity Council resolutions that for a time provided an ad hoc positive law blessing for 
this arrangement. 74 But one should expect the opposite if instead the setting in- 
volves only episodic violence of a type not as readily associated in the public's mind 
with combat and an enemy "force" that is non-hierarchical or otherwise indeter- 
minate in its structure and boundaries. In that case, arguments emerge as to 
whether the threshold of "armed conflict" has been crossed in the first instance 75 
and, even if so, whether the broad discretion associated with the GC security in- 
ternment system makes sense in the context of this particular form of violence. 

3. International Human Rights Law 

Though IHRL refers to a diverse array of treaties and international customary law 
norms, for present purposes it suffices to focus attention on one treaty and one 
norm in particular: the prohibition of arbitrary detention contained in Article 9 of 
the ICCPR. 76 Article 9 provides that all persons have a "right to liberty" and thus a 
State shall not deprive a person of liberty "except on such grounds and in accor- 
dance with such procedure as are established by law." 77 That is to say, a State may 
not hold a person in custody at its own whim as opposed to doing so based on a 
claim that detention in that circumstance is authorized by law. 

Or at least it may not do so ordinarily. The ICCPR also provides that in the event 
of a public proclamation of an emergency "which threatens the life of the nation," 
States may "take measures derogating" from certain ICCPR obligations, including 
the prohibition on arbitrary detention. 78 Then again, the United States has not in- 
voked the derogation option (presumably because the US government position is 



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Robert M. Chesney 



that the ICCPR does not apply extraterritorially and that LOAC in any event con- 
trols over the ICCPR by virtue of the lex specialis principle, as discussed above). 

Assuming that Article 9 is applicable, then, the question arises whether US gov- 
ernment claims of detention authority after 9/11 might violate that norm. The US 
government presumably would argue that military detention conducted under the 
auspices of the AUMF satisfies Article 9, on the theory that the AUMF is a "law" es- 
tablishing the "grounds" for such detention. In response, one might contend that 
Article 9 contemplates only criminal law as a source of detention authority, but 
there is substantial reason to doubt that Article 9 requires such an approach. 79 

Assuming that some degree of non-criminal detention is compatible with Article 9 
(or, if one prefers, with an equivalent customary norm against arbitrary deten- 
tion), we then reach the question whether the government's claim of some particu- 
lar mix of detention predicates and constraints in some way violates IHRL. Here, 
however, IHRL seems not to have anything particular to say; neither the ICCPR, 
nor any other IHRL treaty to which the United States is a party, nor any customary 
norm of IHRL purports to offer a substantive definition of non-criminal de- 
tention authority. 80 

II. Habeas Litigation and the Scope of the Detention Power 

Against the backdrop of uncertainty described in Part I, federal courts have strug- 
gled for nine years to identify the mix of detention predicates and constraints per- 
missibly defining the substantive scope of the government's military detention 
authority at the level of the individual. The range of resulting disagreements is 
remarkable. 

My aim in this Part is to provide a relatively comprehensive descriptive account 
of these doctrinal disputes. I proceed in semi-chronological fashion, beginning 
with the often-overlooked habeas opinions associated with the three individuals 
who were held as "enemy combatants" within the United States after 9/11 and then 
moving on to a review of the pre- and post- Boumediene Guantanamo habeas opin- 
ions. The survey documents considerable and persistent points of disagreement. 

A. The First Wave of Detention Criteria Caselaw: Hamdi y Padilla and Al-Marri 

For several years following 9/11, the judiciary largely was preoccupied with ques- 
tions of jurisdiction, not substantive law. Most detainees were non-citizens cap- 
tured abroad and held outside the United States, after all, and as a result did not 
have a clearly established right to seek judicial review until the Supreme Court con- 
clusively resolved that question in its 2008 decision in Boumediene v. Bush. None- 
theless, judges did have occasion to address the matter of individual detention 

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Who May Be Held? Military Detention through the Habeas Lens 

predicates and constraints in a handful of cases in the pre-Boumediene era, including 
a trio of cases involving detainees held in the United States (one originally captured 
in a combat setting abroad, and two captured in the United States itself). 

1. The Scope of Detention Authority in Relation to Conventional Battlefield 
Captures Involving the Taliban 

The sole post-9/1 1 instance in which the Supreme Court of the United States has 
addressed the substantive-scope issue to any serious extent is Hamdi v. Rumsfeld y 
in which a majority of the Court concluded that (i) associational status — in partic- 
ular, serving as an arms-bearing member of a Taliban military unit — sufficed as a 
detention predicate at least where the detention occurred on the field in Afghani- 
stan and while combat operations continue in that location, and (ii) being a US cit- 
izen does not exempt a person from being subject to such detention authority. 

Yaser Hamdi had come into US custody in Afghanistan after being captured by 
Northern Alliance forces in the fall of 2001. The United States initially believed that 
Hamdi was a citizen of Saudi Arabia, but learned after bringing him to Guan- 
tanamo that he had been born in Louisiana and hence could claim to be a US 
citizen as well. As a result he was moved to a detention facility inside the United 
States, and he no longer faced the jurisdictional hurdles then preventing other 
Guantanamo detainees from obtaining habeas review. 

Hamdi's case presented a relatively easy fact pattern from the viewpoint of the 
substantive-scope issue. He was not alleged to be an al Qaeda member or asso- 
ciate, and he was not captured in circumstances seemingly unrelated to conven- 
tional armed conflict. Rather, the government claimed, he was an arms-bearing 
fighter for the Taliban who had been captured with his unit and his weapon while 
fleeing the battlefield in Afghanistan. Hamdi denied that this was true, but for 
present purposes the important point is that the allegations cleanly presented the 
question whether a person meeting that description lawfully could be held with- 
out criminal charge. 

The fact pattern actually posed two distinct substantive-scope questions. First, 
did the government have authority to detain any person in this situation — i.e., 
bearing arms for the Taliban in Afghanistan? Second, if the government did have 
such authority as a general proposition, would the answer change if the person 
happened to be a US citizen? The Supreme Court splintered in response to these 
questions. 

A plurality of the Court in an opinion by Justice O'Connor upheld both the gov- 
ernment's notional assertion of some authority to detain, as well as its claim that such 
authority extended at least to Hamdi's alleged circumstances — and Justice Thomas 
provided a fifth vote for these conclusions in a separate opinion. 81 To begin with, the 

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Robert M. Chesney 



plurality framed the issue as turning on a question of domestic law informed by 
reference to international law — i.e., the plurality focused on the meaning of the 
AUMF as construed in light of the law of armed conflict. 82 As to the existence of 
some authority to detain, no treaty-based detention provision appeared directly 
applicable; Hamdi was not held as a prisoner of war or security internee, and the 
conflict in Afghanistan by 2004 no longer appeared to be an international armed 
conflict in any event. Nonetheless, the plurality concluded that detention was a 
traditional "incident" of warfare and thus, presumably, a necessary part of what- 
ever body of customary LOAC principles might govern in this setting. 83 As for who 
precisely might be detained as a result, the plurality concluded that detention 
authority at least extended to persons who engaged in a particular combination of 
past conduct and associational status: bearing arms as part of a Taliban military 
unit in Afghanistan. 84 Emphasizing that the point of military detention is preven- 
tive incapacitation, moreover, the plurality expressly rejected the idea that deten- 
tion might be justified on the collateral ground that a person may possess useful 
intelligence. 

The plurality pointedly did not express any view as to the existence or scope of 
detention authority in other settings. It did not say whether detention authority ex- 
tended beyond the Taliban to al Qaeda. It did not address the power to detain per- 
sons captured outside of Afghanistan, or persons who did not literally bear arms on 
a conventional battlefield. It merely observed that the "legal category of enemy 
combatant has not been elaborated upon in great detail," and that the "permissible 
bounds of the category will be defined by the lower courts as subsequent cases are 
presented to them." 85 The plurality did caution, however, that its "understanding 
is based on longstanding law-of-war principles," and that "[i]f the practical cir- 
cumstances of a given conflict are entirely unlike those of the conflicts that in- 
formed the development of the law of war, that understanding may unravel." 86 

2. The Scope of Detention Authority in Relation to Domestic Captures Involving 
al Qaeda 

The Hamdi decision left open more questions than it answered. What conduct 
other than bearing arms on the battlefield might count as membership in an 
AUMF-covered group justifying detention? Would membership continue to be 
sufficient if a person were to be captured outside Afghanistan, or if the linkage was 
to al Qaeda rather than the Taliban? Could conduct aside from membership — 
especially providing material support — provide an independent sufficient condi- 
tion for detention in any location? 

The cases of Jose Padilla and Ali Salah Kahleh al-Marri provided an early oppor- 
tunity to address some of these loose ends. Unlike Guantanamo detainees, but like 

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Who May Be Held? Military Detention through the Habeas Lens 

Yaser Hamdi, both were in a position to seek habeas review with little in the way of 
jurisdictional disputes. Padilla was an American citizen captured in Chicago and 
eventually taken into military custody on the ground that he was an al Qaeda 
sleeper agent who had come back to the United States to assist or even personally 
participate in terrorist attacks. Al-Marri, a Qatari citizen, likewise was arrested in- 
side the United States and then later transferred to military custody based on his al- 
leged role as an al Qaeda sleeper agent. Neither, it initially appeared, was directly 
connected to the conventional battlefield in Afghanistan or to the Taliban. 

The Padilla litigation moved forward quickly. Indeed, the substantive detention 
authority question was before Judge Michael Mukasey of the Southern District of 
New York by December of 2002. 87 As an initial matter, he found that the President 
had general authority to use military force against al Qaeda as a result of both the 
AUMF and Article II of the Constitution, and that the substantive scope of the re- 
sulting detention authority could be determined at least in part by reference to 
LOAC (at least insofar as LOAC takes the form of treaties to which the United 
States is a party, such as GPW). 88 LOAC, Judge Mukasey concluded, permits the 
detention without charge of persons who qualify as either lawful or unlawful com- 
batants. 89 He did not elaborate the conditions necessary to show that a person fits 
into one or the other category; that is, he did not specify whether lawful and unlaw- 
ful combatancy turns on conduct, status or both. He did, however, expressly reject 
the notion that Padilla should be exempt from detention simply because he was a 
citizen or because he was captured within the United States, and he implicitly re- 
jected the notion that detention authority extends only to persons who actually 
bore arms on a conventional battlefield. 90 

Padilla appealed, and in late 2003 prevailed in a decision from a divided panel of 
the Second Circuit. 91 For Judges Pooler and Parker, the critical facts were Padilla's 
status as a citizen and his arrest within the United States — i.e., away from a conven- 
tional battlefield. 92 In that specific scenario, they concluded, the Constitution re- 
quires that any power to detain be conferred expressly by statute, not implicitly. 93 
The AUMF, in this view, lacked sufficient clarity. 94 

This set the stage for Supreme Court review, or so it appeared. In the end, how- 
ever, the Court avoided the issue. In an opinion issued simultaneously with the 
Court's Hamdi ruling, the Court held that the petition in Padilla's case should have 
been filed in South Carolina (the state in which Padilla was held at the time he filed) 
rather than in New York (the state in which he initially had been held). 95 Litigation 
thus had to begin anew at the district court level. 

On remand to the District of South Carolina, Judge Floyd adopted the Second 
Circuit's view that detention authority did not apply to an American captured in 
the United States (absent a clear statement from Congress of its intention to convey 

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Robert M. Chesney 



such authority), and then added an additional reason to believe Padilla in particu- 
lar could not be detained. 96 The phrase "all necessary and appropriate force" in the 
AUMF, he argued, should be construed rather literally; any exercise of force must 
be "necessary" in the strict sense that no adequate non-military alternative is avail- 
able. Padilla could not be detained militarily, on this view, because he could be 
(and indeed for a time had been) incapacitated instead through the civilian crimi- 
nal justice system. 97 

A few months later, a Fourth Circuit panel reversed, albeit on somewhat unex- 
pected grounds. 98 Referencing the Hamdi plurality opinion, Judge Luttig ex- 
plained that the ultimate question is whether the AUMF, as construed in light of 
LOAC, confers detention authority in a particular case. 99 Hamdi had settled the 
point as to a Taliban member captured in the field in Afghanistan, whereas the 
Padilla litigation had seemed to present the question whether the same result ob- 
tained for an al Qaeda member captured far from conventional combat. But as re- 
stated in the Fourth Circuit's opinion, Padilla's fact pattern looked much more like 
that in Hamdi after all. Padilla, Judge Luttig emphasized, had received military 
training at an al Qaeda facility in Afghanistan and was present there as part of an 
armed al Qaeda unit serving the Taliban at the time of the US military intervention 
after 9/1 1. 100 The only notable difference between Hamdi and Padilla, in this view, 
was that the latter managed to evade capture until far from the battlefield. 101 This 
was no reason to deny the government's detention authority in the panel's view, 
even when the capture occurred within the United States. 102 

Once more the stage seemed set for Supreme Court review. What would have 
occurred next remains a mystery, however, as the government soon transferred 
Padilla back to civilian custody in order to prosecute him in Florida. The move pre- 
cipitated criticism in some quarters, and prompted a manifestly unhappy Judge 
Luttig to vacate his earlier opinion on the merits. Nonetheless, Padilla's special role 
as the vehicle for fleshing out the substantive law of detention had come to an end. 
Going forward, it seemed that it would be the contemporaneous al-Marri litigation 
that tested the boundaries of detention authority. 

Like Padilla, Ali Salah Kahleh al-Marri initially pursued habeas relief in the 
wrong jurisdiction, and as a result no judge addressed the merits in his case until 
2005. 103 Eventually he refiled his petition in South Carolina, and like Padilla his 
case came before Judge Floyd. As noted above, Judge Floyd in early 2005 had con- 
strued the AUMF not to provide detention authority in Padilla's case, and since his 
opinion addressing the same issue in al-Marri's case came down just a few months 
later — before the Fourth Circuit reversed Judge Floyd's Padilla ruling — al-Marri no 
doubt expected a similar result. But it turned out otherwise. Judge Floyd drew a 
sharp distinction between citizens such as Padilla and non-citizens such as al-Marri, 



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Who May Be Held? Military Detention through the Habeas Lens 

notwithstanding the latter's lawful residence in the United States. 104 Citizenship, 
on this view, had been not just an important but a necessary condition of Judge 
Floyd's earlier, strict reading of the AUMF. For non-citizens, Judge Floyd would 
insist on neither express statutory language conferring detention authority nor a 
strict reading of "necessity" such that military detention is not available when 
criminal prosecution suffices as an alternative. 105 Judge Floyd's Al-Marri opinion 
thus emerged alongside that of Judge Mukasey in Padilla as broad endorsements of 
detention authority away from the conventional battlefield. 

Approximately one year later, a divided panel of the Fourth Circuit yet again re- 
versed. 106 The panel majority, written by Judge Motz, framed its analysis, at least at 
the outset, in terms of a domestic law consideration that would not necessarily ap- 
ply to non-citizens captured outside the United States. Specifically, Judge Motz 
emphasized that al-Marri, though a non-citizen, was lawfully present in the United 
States at the time of his arrest and hence able to invoke the protections of the Fifth 
Amendment Due Process Clause. 107 The manner in which she elaborated the 
meaning of the Fifth Amendment in this context, however, had sweeping implica- 
tions for the scope of the government's detention power even in other settings. The 
Fifth Amendment, she explained, generally precludes detention other than pursu- 
ant to criminal conviction, subject only to a fixed number of narrowly defined ex- 
ceptions. 108 One such exception is the power to detain an enemy combatant during 
war, 109 and the boundaries of that category must be ascertained by reference to 
LOAC. 1 10 The court's analysis of the Fifth Amendment issue thus became a vehicle 
for staking out a position regarding LOAC's general approach to the substantive- 
scope issue — a position that would carry implications for any detention carried out 
under color of LOAC, regardless of whether the detainee had Fifth Amendment 
rights or access to judicial review. 

What precisely did the panel conclude with respect to LOAC's treatment of the 
detention question? The opinion began by asserting that LOAC "provides clear 
rules for determining an individual's status" as either a "combatant" or a "civilian" 
in the context of international armed conflict. The panel asserted that civilians 
were categorically immune from military detention without criminal charge, fail- 
ing to account for the security internment regime provided in the GC. 111 LOAC, 
the panel concluded, contemplated detention solely for combatants. 

As to who constituted a combatant, the panel looked to GPW, Article 4, which 
defines eligibility for POW status. 112 That is to say, the panel equated eligibility for 
detention with eligibility for POW status, adding that LOAC treats as "combat- 
ants" only those who fight for the military arm of a nation-State, not just any armed 
group. 1 ,3 Indeed, the panel added, there simply was no such thing as "combatant" 



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Robert M. Chesney 



status — and hence no LOAC-based detention authority — outside the context of 
international armed conflict. 114 

This was fatal to the attempt to detain al-Marri. Hamdi had been detainable in 
theory because of his alleged affiliation with the military arm of the Taliban, with 
the Taliban functioning as the de facto government of Afghanistan. Padilla's eligi- 
bility ultimately rested on the same ground (according to the Fourth Circuit at 
least, even if not Judge Floyd). 115 Al-Marri, in contrast, was a "mere" al Qaeda 
member with no alleged prior role as a de facto Taliban battlefield fighter. At most 
he was someone associated with the enemy in a ^on-international armed conflict in 
which there simply was no LOAC-based detention authority. No al Qaeda member 
could be detained, on this view, absent the coincidence of having been in the field 
in Afghanistan in a context that could be described as bearing arms for the 
Taliban — whether later captured in the United States or not. 

But the al-Marri litigation was not over. The government successfully sought 
en banc review, resulting in a reversal of the panel by a narrow margin — and a pro- 
found splintering of opinion regarding the substantive bounds of the govern- 
ment's detention authority. 116 Four judges, in a new opinion by Judge Motz, 
endorsed the panel's original rationale. 117 Five other judges disagreed, albeit for 
different reasons. 

Judge Traxler, in an opinion joined in relevant part by Judge Niemeyer, concen- 
trated on the language of the AUMF itself, and in particular on its reference to the 
use of force against "organizations" as well as "nations" found to be linked to the 
9/11 attacks. 118 In their view, the AUMF reflects a legislative intent to permit mili- 
tary force against al Qaeda, above all. 119 They did not dispute that LOAC defined 
limits on how such force might be employed, but rejected the panel's conclusion 
that LOAC permitted detention only when dealing with members of the military 
arm of an actual nation-State. 120 

Judge Williams, in a separate opinion joined by Judge Duncan, offered a view 
that was simultaneously broad and narrow. Like Judge Traxler, Judge Williams re- 
jected the claim that the detention authority conferred by the AUMF should be 
read to apply only to members of the military arm of a government. But whereas 
Judge Traxler suggested that LOAC imposed no such limitation, Judge Williams 
accepted that the panel's approach "may very well be correct" as a statement of 
LOAC; he simply did not think that any such LOAC-based restraints survived the 
AUMF's explicit reference to the use of force against "organizations" as well as "na- 
tions" linked to the 9/11 attacks. 121 Interestingly, however, Judge Williams in an- 
other sense did define detention authority narrowly. Rather than refer to mere 
membership in or association with an enemy force as sufficient to justify detention 
under the AUMF, he advanced a conduct-based criterion: one must "attempt [] or 



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Who May Be Held? Military Detention through the Habeas Lens 

cngage[] i n belligerent acts against the United States" on "behalf of an enemy 
force" in order to be subject to detention on this model. 122 Further complicating 
matters, moreover, Judge Williams (somewhat inconsistently) held open the pos- 
sibility that detention authority might not continue to exist when the United States 
was no longer engaged in conventional combat operations in Afghanistan. 123 

Then we have the distinctive opinion of Judge Wilkinson. 124 His analysis began 
relatively conventionally, exploring whether the AUMF on its own terms plausibly 
could be read to limit detention authority to members of government-sponsored 
armed forces or persons who literally fought on a conventional battlefield. 125 Nei- 
ther its broad terms nor the legislative intent giving rise to it could be squared with 
such limits, he concluded. 126 

Next, Judge Wilkinson considered whether the broad scope of detention au- 
thority seemingly conferred by the AUMF could be reconciled with any applicable 
constitutional limitations given that al-Marri had been lawfully resident in the 
United States. 127 Citing Hamdi, Judge Wilkinson observed that the government 
constitutionally may detain persons who count as "enemy combatants." 128 The 
task at the heart of the constitutional inquiry, therefore, was to identify the con- 
tours of the "enemy combatant" category. 129 Toward that end, Judge Wilkinson 
reasoned that one must look to "traditional law of war principles." 130 LOAC was 
"not binding of its own force," he cautioned. But it mattered nonetheless because it 
"informs our understanding of the war powers in Articles I and II and of the enemy 
combatant category." 131 

Having clarified his motivation for doing so, Judge Wilkinson proceeded to a 
lengthy discussion of LOAC's treatment of the detention question. 132 In accord 
with Judge Motz — and likewise without reference to the security internment 
framework in the GC — Judge Wilkinson accepted that LOAC permitted detention 
without criminal charge solely for combatants, not for civilians. 133 He differed 
sharply from Judge Motz, however, with respect to the scope of the combatant cat- 
egory. Whereas Judge Motz effectively equated combatancy with eligibility for 
POW status, Judge Wilkinson accepted the government's contention that some in- 
dividuals lose their eligibility for POW status by flouting LOAC yet nonetheless re- 
main "combatants" subject to targeting and detention. 134 On that view, POW 
status is not the measure of combatancy, nor was any "single factor" a necessary or 
sufficient condition to establish that status. 135 The most one could say, Judge 
Wilkinson argued, was that the category "traditionally included 'most members of 
the armed forces'" as well as "those 'who associate themselves with the military arm 
of the enemy government,'" 136 and that key indicia included self-identification 
through the wearing of uniforms, involvement in the command structure of a 
party to the conflict or presence on the battlefield. 137 

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Robert M. Chesney 



At this point in his analysis, however, Judge Wilkinson introduced a distin- 
guishing proposition: that LOAC is evolving in the face of asymmetric warfare 
and mass-casualty terrorism, bringing with it corresponding change to the con- 
cept of combatancy. 138 He expressly embraced the proposition that law and stra- 
tegic context exist in dynamic relationship, 139 and argued that LOAC in particular 
had "consistently accommodated changes in the conduct of war and in interna- 
tional relations." 140 In our own era, he observed, war was becoming "less a state- 
based enterprise," with the diffusion of destructive technologies enabling super- 
empowered non-State actors to pose a strategic threat to States. 141 "Thus," he 
concluded, "while the principle of discrimination and the category of enemy 
combatant surely remain a vital part of the law of war, they most definitely must 
accommodate the new threats to the security of nations." 142 

All of which raised two questions. Precisely how should LOAC evolve? And 
through which institutional mechanisms should such evolution be effectuated or 
recognized? 

As to the latter point, Judge Wilkinson contended that the elected branches of 
the government already had expressed their opinion of the matter by expressly in- 
cluding "organizations" in addition to States in the AUMF's text. But he also stated 
at the outset of the opinion that the time had come to "develop" a new, tailored le- 
gal framework to accommodate LOAC to the evolving strategic climate, 143 and he 
proceeded at this point in his analysis to offer his own perspective as to how best 
this could be done. 144 Going forward, he argued, the inquiry into combatant status 
ought to turn on a three-step inquiry: a combatant is a person who is 

(1) ... a member of (2) an organization or nation against whom Congress has declared 
war or authorized the use of military force, and (3) [who] knowingly plans or engages 
in conduct that harms or aims to harm persons or property for the purpose of further- 
ing military goals of the enemy nation or organization. 145 

The Wilkinson test, in short, combines a membership inquiry with a conduct 
test, thus arriving at a result not unlike that advanced by Judge Williams. As to 
membership, Judge Wilkinson conceded that identifying a sufficient degree of 
association with a non-State actor would be more difficult than, say, ascertaining 
citizenship. 146 Nonetheless, he argued, the concept could be measured with refer- 
ence to criteria such as "self-identification with the organization through verbal 
or written statements; participation in the group's hierarchy or command struc- 
ture; or knowingly taking overt steps to aid or participate in the organization's ac- 
tivities." 147 As for the additional requirement of involvement in hostile conduct, 
Judge Wilkinson suggested that this criterion would encompass both those who 



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Who May Be Held? Military Detention through the Habeas Lens 

literally engage in hostilities and those who merely engage in preliminary steps to- 
ward such acts (as with a "sleeper cell"), but that it would not also reach the 
members of an enemy organization otherwise (and hence would not encompass 
an al Qaeda doctor, for example). 148 

The net result of the Traxler, Williams and Wilkinson opinions was a five-vote 
majority rejecting the proposition that the AUMF conferred detention authority 
solely as to those who fought for the armed forces of a government or those who 
had fought on a conventional battlefield. The five-vote block did not agree, how- 
ever, with respect to whether membership in a non-State organization such as al 
Qaeda must be joined with hostile individual conduct in order for detention au- 
thority to attach, and it was unclear what the four-vote block associated with the 
opinion of Judge Motz might think of that proposition. 

The al-Marri litigation would shed no further light on these questions. The Su- 
preme Court did grant certiorari in the case, but as had happened with Padilla pre- 
viously, the government at that point mooted the case by transferring al-Marri to 
civilian custody to face criminal prosecution — prompting the Supreme Court to 
vacate the Fourth Circuit's judgment and remand the case to be dismissed as 
moot. 149 Thus ended the last of the suits challenging the government's detention 
authority in the exceptionally complicated — and exceptionally uncommon — con- 
text of US citizen detainees and other persons captured inside the United States. 

Some things seemed to have been settled along the way, others not. The judges 
uniformly agreed that the AUMF conferred some detention authority, including at 
least the authority to reach Taliban fighters — even US citizens — captured on the 
battlefield in Afghanistan. Beyond this, however, the judges disagreed sharply. 
Some rejected the proposition that the authority could extend to al Qaeda-linked 
individuals, while others took the contrary view. Among those accepting that de- 
tention authority could extend to the context of al Qaeda-related captures, some 
thought membership in al Qaeda a sufficient condition for detention, while others 
argued that membership was necessary but not sufficient, and that some showing 
of knowing conduct associated with violence was also required. Among those who 
found membership sufficient or at least relevant to the analysis, moreover, there 
was relatively little discussion of just what the indicia of membership in a non-State 
actor like al Qaeda might be. None of the judges, finally, had occasion to address 
the scenario in which a person was not a member of an AUMF-covered group but 
had provided material support to one. 

B. The Second Wave of Detention Criteria Caselaw: The Guantanamo Cases 

The end of domestic-detention litigation did not mean that courts going forward 
would have no further opportunity to consider these debates. The same questions 

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Robert M. Chesney 



of course arise in relation to the vastly more frequent scenario in which the military 
has detained non-citizens captured and held overseas. 

1. Contesting the Substantive Scope of Detention Authority in Boumediene 
Between the opening of detention operations at Guantanamo in January 2002 and 
the summer of 2004, the ability of non-citizens held there to obtain judicial review 
via habeas corpus was sharply contested. That contest ended for a brief period in 
June 2004, however, when the Supreme Court in Rasul v. Bush held that the federal 
habeas corpus statute conferred jurisdiction as to the claims of the Guantanamo 
detainees. Not long thereafter, Congress enacted the first of two statutes designed 
in part to overturn the statutory holding in Rasul, thus reviving the debate over ju- 
risdiction that stood between the Guantanamo detainees and judicial consider- 
ation of any merits issues they might present — including arguments about the legal 
boundaries of detention authority. 150 Yet in the months before Congress acted, ha- 
beas litigation had moved forward in federal court in Washington, D.C., with two 
cases proceeding to the merits. 

Ultimately, these cases would come together in the Supreme Court under the 
name Boumediene v. Bush. At the district court level, however, they remained 
quite distinct. One came before Judge Leon, who resolved the petition in the gov- 
ernment's favor without addressing the substantive scope of the government's 
detention authority. 151 The other came before Judge Green, who took the con- 
trary view. 

In a January 2005 decision titled In re Guantanamo Detainee Cases, Judge Green 
concluded that the detainees held at Guantanamo were entitled to the protections 
of the Fifth Amendment notwithstanding their status as non-citizens captured and 
held outside the United States. 152 This of course raised constitutional questions re- 
garding the actual process the detainees had been afforded. But it also raised a con- 
stitutional question regarding the substantive scope of detention authority 
asserted by the government in the following sense. 153 One group of detainees in the 
litigation had argued that the Fifth Amendment precludes detention "based solely 
on . . . membership in anti-American organizations rather than on actual activities 
supporting the use of violence or harm against the United States." 154 Judge Green 
agreed, writing that it would violate due process if the government were to hold a 
person "solely because of his contacts with individuals or organizations tied to ter- 
rorism and not because of any terrorist activities that the detainee aided, abetted, 
or undertook himself." 155 In that respect, Judge Green's opinion was akin to the 
view expressed by Judge Wilkinson in Al-Marri; for both judges, detention could 
not be predicated on membership alone, but must include some showing of 



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Who May Be Held? Military Detention through the Habeas Lens 

knowing involvement in violent activities (though not necessarily direct participa- 
tion in violence). 156 

It would be some time before another judge would address the substantive 
scope of detention authority in the context of a Guantanamo habeas claim. By the 
time the decisions by Judges Leon and Green were before the D.C. Circuit Court of 
Appeals, Congress had enacted the Detainee Treatment Act, which purported to 
eliminate statutory habeas jurisdiction — thus reviving the pre-Rasul jurisdictional 
debate, albeit with a twist. Instead of eliminating all judicial review, the DTA cre- 
ated an exclusive mechanism pursuant to which the D.C. Circuit Court of Appeals 
could review individual detention decisions at Guantanamo in order to determine 
whether the military's screening system complied with the "Constitution and laws 
of the United States" and whether the military had actually complied with its own 
screening rules in a particular case. This model appeared to leave the D.C. Circuit 
in a position to consider the legal boundaries of the government's detention au- 
thority, but at the same time the DTA appeared to eliminate the habeas review 
system that had provided Judge Green the occasion for her ruling. 

Several detainees — including many of the individuals involved in the cases be- 
fore Judges Leon and Green — argued that this arrangement was unconstitutional, 
reasoning that the Constitution required the existence of habeas corpus jurisdic- 
tion at Guantanamo and that the D.C. Circuit review alternative was not an ade- 
quate substitute. That much is widely appreciated, as their arguments did 
ultimately prevail in Boumediene. Many are not aware, however, that these litigants 
simultaneously pressed the substantive question of who lawfully may be detained, 
and that this question was briefed and argued to the Supreme Court alongside the 
jurisdictional issue. 

The lead petitioners in Boumediene did not focus their arguments on Judge 
Green's determination that the Due Process Clause required a conduct-based 
rather than a membership-based test for detainability. 157 Instead, they concen- 
trated on LOAC-based arguments that would constrain the government's deten- 
tion authority irrespective of whether a particular detainee could claim Fifth 
Amendment protections. Their argument began with the premise that LOAC de- 
fined the outer boundaries of whatever detention authority the United States 
had. 158 Next, the petitioners argued that LOAC does not recognize combatant sta- 
tus in relation to armed conflicts between States and non-State actors; in that set- 
ting, they contended, everyone counts as a civilian. 159 

One might have expected them to stop at this point, echoing the view of Judge 
Motz in the Al-Marri panel decision to the effect that civilians simply are not sub- 
ject to military detention. But they did not do so. On the contrary, they conceded 



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Robert M. Chesney 



that some civilians could indeed be detained consistent with LOAC. 160 But which 
ones? 

The petitioners invoked the "direct participation in hostilities" (DPH) test, ar- 
guing that any civilian could be detained to the extent that he or she had engaged in 
DPH. 161 DPH is a LOAC principle associated with the question of who maybe tar- 
geted with lethal force, reflecting the notion that whereas a "combatant" may be 
targeted at all times so long as not hors de combat, a "civilian" may never intention- 
ally be targeted unless that person is engaged in DPH. DPH is not, in other words, a 
concept traditionally associated with detention authority. Nonetheless, in the con- 
text of a non-international armed conflict involving a clandestine network the 
members of which sought to obscure their identity, the idea of using DPH as a sort- 
ing standard had a certain appeal as a limiting principle for detention authority. 
From this point of view, their argument was rather in the spirit of Judge Wilkin- 
son's effort to craft a more-tailored understanding of "combatant" for use in the 
same setting, except that in this case the argument was framed as a description of 
what LOAC already requires as a binding rule of international law in this 
context. 162 

Even assuming the Supreme Court was amenable in principle to using the DPH 
standard as the measure of detainability, a problem remained. Famously, the pre- 
cise meaning of DPH is the subject of fierce and protracted disagreement. 163 

The petitioners would have to tread carefully in crafting their position on this 
point. If they pushed for too narrow a definition, they might alienate those mem- 
bers of the Court inclined to recognize a relatively broad amount of detention au- 
thority. If they advanced too broad a conception, on the other hand, they might 
confirm their own detainability. Ultimately, and perhaps surprisingly, they erred 
on the side of a broad definition. 

As an initial matter, they conceded that immediate personal involvement in 
conventional battlefield-type actions counts as direct participation. 164 That much 
is common ground for most, if not all, participants in the larger DPH debate. They 
did not stop there, however. They also endorsed the view that a person can be 
deemed perpetually engaged in DPH — in effect, waiving the protections of civilian 
status — insofar as he engages in DPH on a repeated basis (a position rather like the 
"continuous combat function" theory of DPH advanced by the International 
Committee of the Red Cross, among others). 165 The petitioners added that this sta- 
tus would extend to leadership figures in al Qaeda, moreover, and most remark- 
ably of all they suggested it might even extend to those actual members of al Qaeda 
who are subject to the group's direction and control. 166 In short, the petitioners 
offered a test that would leave the government with a substantial amount of deten- 
tion — and targeting — authority, while excluding those who at most provide 



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Who May Be Held? Military Detention through the Habeas Lens 

support on a relatively independent basis to al Qaeda or the Taliban (presumably 
the petitioners reasoned that the government at most could prove them to be in 
the latter category). 167 

Notwithstanding this invitation, the Supreme Court in Boumediene ultimately 
chose to say nothing at all about the question of detention standards, neither en- 
dorsing nor rejecting Judge Green's objection to membership-based detention or 
the Boumediene petitioner's DPH-based argument. 168 All of this instead would be 
left for the district courts to sort out in the coming wave of habeas litigation. 

2. Contesting the Substantive Scope of Detention Authority after Boumediene 
Much has occurred in the Guantanamo habeas litigation during the two and a half 
years since the Supreme Court's decision in Boumediene. The federal district court 
in Washington, D.C. has resolved the merits in habeas cases involving forty indi- 
vidual Guantanamo detainees, rinding for the government in nineteen instances 
and for the detainee in twenty-one. 169 Many of these rulings have been or may yet 
be appealed. Of the nineteen cases won by the government at the district court 
level, the D.C. Circuit has reached the merits in five, affirming in four instances 
and reversing and remanding for further consideration in one other. 170 Of the 
twenty-one cases won by the detainee at the district court level, the D.C. Circuit has 
reached the merits in two, reversing with instructions to deny the writ in one in- 
stance 171 and reversing and remanding for further consideration in another. 172 
Many of these appellate decisions are themselves now the subjects of unresolved 
petitions for certiorari, and so the circumstances remain in flux. 173 

In addition to all of this, the D.C. Circuit Court of Appeals very shortly after 
Boumediene held that the government lacked authority to detain a group of seven- 
teen Chinese Uighur detainees, because their alleged affiliation with the East 
Turkistan Islamic Movement did not bring them within the scope of the AUMF. 174 
That ruling came under the auspices of the DTA, rather than the habeas corpus re- 
view mandated weeks earlier by Boumediene^ 75 but the result in any event was a 
defeat for the government. 

For the most part, these decisions have turned on evidentiary issues. That is, 
they turn on questions such as whether and to what extent to credit certain kinds of 
evidence, and above all whether the collective impact of the government's evidence 
suffices in a particular case to prove by a preponderance of the evidence that a de- 
tainee is who the government claims him to be. 176 But along the way, the judges 
have had several occasions to grapple with the substantive-scope questions left 
open by the combination of Hamdi, Padilla, Al-Marri and Boumediene. Perhaps 
predictably, they have disagreed on several key points. 



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Robert M. Chesney 



The first section below surveys a handful of conflicting cases considering 
whether future dangerousness should be treated as a necessary condition for de- 
tention. For the time being at least, the answer to that question is no. The next sec- 
tion takes up a line of cases illustrating a strong consensus to the effect that 
membership counts as a sufficient condition for detention, but also revealing con- 
siderable disagreement both as to the actual meaning of membership and whether 
support independent of membership can serve as an alternative sufficient 
condition. 

a. Rejecting Personal Dangerousness as a Necessary Condition. On April 15, 2009, 
Judge Ellen Huvelle held in Basardh v. Obama that the government may not con- 
tinue to hold anyone in custody, regardless of whether he or she was a member or 
supporter of a relevant group at the time of capture, where the person is not likely 
to "rejoin the enemy" if released. 177 The September 18, 2001 AUMF "defines the 
Executive's detention authority in plain and unambiguous terms," she asserted, 
and "does not authorize the detention of individuals beyond that which is neces- 
sary to prevent those individuals from rejoining the battle . . . ." 178 Reasoning that 
Basardh had no prospect of rejoining any enemy of the United States as a result of 
"widespread public disclosure" of his cooperation with American interrogators, 
Judge Huvelle concluded that he must be released. 179 

This approach amounts to the imposition of a particular kind of "future danger- 
ousness" condition, above and beyond whatever criteria might be required to jus- 
tify detention in the first instance. It did not prove popular, however, among other 
judges. Two district judges explicitly rejected this aspect of Basardh, 180 and more 
significantly the D.C. Circuit eventually did the same. 181 For the time being, then, 
this aspect of the substantive-scope issue has been settled. 

b. Contesting Membership and Support as Sufficient Conditions. The bulk of 
the post-Boumediene cases dealing with the substantive-scope question have fo- 
cused on the role of membership and independent support as sufficient conditions 
for detention. Notwithstanding earlier claims to the contrary by Judge Green in In re 
Guantanamo Detainee Cases and Judge Wilkinson in Al-Marri, these opinions reflect 
widespread agreement among the judges that associational status alone — i.e., 
membership in an AUMF-covered group — can serve as a sufficient condition to jus- 
tify detention. Consensus breaks down, however, when it comes to fleshing out the 
meaning of membership, and likewise when it comes to determining whether in- 
dependent support — i.e., the provision of material support to an AUMF-covered 
group by a non-member — can serve as an alternative sufficient condition. 



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Who May Be Held? Military Detention through the Habeas Lens 

These issues arose initially before Judge Leon, presiding over the merits hearing 
for the Boumediene petitioners themselves on remand from their Supreme Court 
victory. 182 In October 2008, he issued an opinion characterizing both the petition- 
ers and the government as having urged him to "draft" his own preferred legal 
standard regarding the boundaries of detention authority. 183 This he refused to do, 
arguing that his role instead was merely to determine whether the administration's 
position was consistent with a pair of domestic legal considerations: the AUMF, and 
any further authority the President might have under the "war powers" of Article II 
of the Constitution. 184 Without substantial elaboration, Judge Leon concluded 
that the government's two-track standard was compatible with both. 185 

There things stood when the Obama administration came into office in early 
2009. On the second day of his administration, President Obama initiated a major 
review of detention policy by giving an interagency task force six months to assess 
the full range of options associated with the capture, detention, trial and disposi- 
tion of persons in the context of combat and counterterrorism operations. 186 But 
litigation deadlines pay no respect to plans for carefully paced policy deliberations, 
particularly not when years of jurisdictional litigation precedes the merits. Long 
before the mid-2009 deadline for completion of the interagency review, the admin- 
istration was obliged to make clear not only whether it intended to defend its au- 
thority to employ military detention without criminal charge at Guantanamo, but 
also what substantive detention standard it believed it had a right to invoke. 

It did this on March 13, 2009, when the Justice Department's Civil Division filed 
a brief before Judge Bates in the Hamlily litigation. To the surprise of some, the 
Obama administration continued to assert authority to detain without charge, and 
to do so pursuant to a standard not much different from the Combatant Status 
Review Tribunal standard of the Bush administration. To be sure, it eschewed 
the baggage-laden nomenclature of "unlawful enemy combatant" in favor of an 
acronym-less, generic reference to those persons subject to detention pursuant to 
the September 18, 2001 Authorization for Use of Military Force. And it also ex- 
pressly embraced the relevance of LOAC for purposes of defining the particulars of 
that authority. Those particulars turned out to be much the same as before, however, 
including preservation of the two-track approach encompassing either members or 
supporters of al Qaeda, the Taliban or associated groups. The only substantive dif- 
ference was the qualification — or clarification — that independent support must be 
"substantial" in order to trigger eligibility for detention, thus eliminating any argu- 
ment that de minimis support might suffice to support detention. 

Before Judge Bates had the chance to address the merits of the revised position 
in Hamlily, Judge Walton did so in Gherebi v. Obama. m As an initial matter, Judge 
Walton rejected the argument that LOAC provides no detention authority at all 

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Robert M. Chesney 



outside of international armed conflict, and that the AUMF should be construed 
accordingly. 188 LOAC, he argued, is best viewed as a restraining body of law rather 
than an authorizing body of law. 189 Thus, though it is true that Common Article 3 
has no express language affirmatively authorizing detention, this merely showed 
that LOAC imposes no restraints on who lawfully may be detained in non- 
international armed conflict. 

Any restraints instead must come from some other body of law, including the 
AUMF itself. In Judge Walton's view, however, the AUMF most certainly did con- 
fer at least some detention authority. " [W]henever the President can lawfully exer- 
cise military force, so, too, can he incapacitate the enemy force through detention 
rather than death." 190 

That position, of course, was not enough to settle the legal boundaries of 
AUMF-based detention authority. Judge Walton next had to confront the question 
of who counts as the "enemy force" when you are not contending with another 
State's army. Borrowing from the approach of the petitioners in Boumediene, the 
detainee in Gherebi urged Judge Walton to adopt DPH as the measure of 
detainability. 191 But he did not advocate the same conception of DPH as had the 
Boumediene petitioners. Specifically, he rejected the notion that the protections of 
civilian status might be waived on a sustained basis through continuous participa- 
tion in hostilities, thus eliminating the need to determine whether a person was en- 
gaging in DPH at a precise point in time. 192 Furthermore, the petitioner in Gherebi 
added that it would not be enough just to show that a person had engaged in DPH; 
in addition, he argued, the person must also have been "part of an organized armed 
force" rather than some independent actor. 193 

In the end Judge Walton rejected the invitation to adopt one or another ver- 
sion of the DPH standard as a necessary condition for detainability — though he 
did not refrain from stating in dicta that the continuous-combat-function con- 
ception of DPH "while perhaps not quite broad enough, is a step toward the right 
answer," and that if he were to accept the DPH standard he would construe it to 
cover "all members of the armed forces of the enemy ... at all times for the dura- 
tion of hostilities." 194 

He did agree, however, that membership in an organized armed force is a neces- 
sary condition for detention authority — indeed, he concluded that it was a suffi- 
cient condition as well. 195 His argument in support of this conclusion turned on 
the notion that the combatant category did indeed exist in non-international 
armed conflict. 196 Again noting his view that LOAC is merely restrictive in nature, 
and hence that silence on a point does not deprive a State of the power to act in a 
particular way, Judge Walton explained that the silence of Common Article 3 with 
respect to the existence of a "combatant category" did not mean that no such 

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Who May Be Held? Military Detention through the Habeas Lens 

category could be recognized in the non-international armed conflict setting. 197 
Explicitly equating targeting and detention authority, he asserted that the mem- 
bers of the enemy armed force can be attacked at any time in non-international 
armed conflict "and, incident to that attack, detained at any time." 198 

In recognizing the existence of a category of detainable combatants in the non- 
international conflict setting, Judge Walton's opinion in Gherebi was contrary to 
the views expressed by the Second Circuit in Padilla and Judge Motz in Al-Marri. 
By accepting that membership alone might establish this ground for detention, his 
opinion was contrary to Judge Green's in the In re Guantanamo Detainee Cases 
(though, to be fair, Judge Green's position against association status as a permissi- 
ble detention predicate rested on the premise that the detainee had a Fifth Amend- 
ment Due Process right to invoke). And to the extent his opinion rejected the need 
to show a detainee had personally had involvement in hostile conduct, it seemed 
contrary as well to the views expressed by Judges Williams and Wilkinson in the 
Fourth Circuit's en banc opinion in Al-Marri. It was most akin, if anything, to 
Judge Mukasey's original Padilla opinion, and perhaps also to the concurrence of 
Judge Traxler in Al-Marri. 

In any event, Judge Walton's approach at first blush appeared to be a government- 
friendly one, insofar as it demanded only a showing of associational status. But 
whether this was in fact a flexible or narrow standard really depends on how one 
defines "membership" and "armed force" — concepts with relatively clear meaning 
in a conventional armed conflict between the armies of States, perhaps, but most 
certainly not in the context of conflict with a clandestine non-State network with 
indeterminate organizational conceptions. 

As to this question, Judge Walton turned explicitly to LOAC, stating that the 
"criteria" set forth in GPW, Article 4 and Additional Protocol I, Article 43 consti- 
tute "templates from which the court can glean certain characteristics" of an 
"armed force." 199 This was a challenging approach, to say the least, because if there 
is anything that Articles 4 and 43 emphasize as criteria for recognition as an armed 
force, it is adherence to LOAC — and whatever else one might say about al Qaeda 
and the Taliban, they neither comport their conduct with LOAC nor make any 
pretense of doing so. Taken literally, then, Judge Walton's reference to the criteria 
in these provisions would produce precious little in the way of combatant deten- 
tion authority in this particular context. But Judge Walton's opinion did not high- 
light the LOAC-adherence language in these articles. Instead, he highlighted their 
implicit emphasis on the existence of a hierarchical command structure. 200 Treat- 
ing formal organizational structure as the hallmark of an armed force whose mem- 
bers might constitute detainable (and targetable) combatants, Judge Walton then 



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Robert M. Chesney 



concluded that the ultimate inquiry is whether the person in question had "some 
sort of structured' role in the 'hierarchy' of the enemy force." 201 

Judge Walton did seem sensitive to the difficulties inherent in mapping that 
model onto the context of decentralized networks such as al Qaeda, emphasiz- 
ing that one must not be too rigid in looking for formal proof that a person oc- 
cupied such a position. 202 He noted that there usually will not be membership 
cards or uniforms. 203 The "structured role" test, he explained, may turn instead 
on a particular functional inquiry: did the person "receive [] and execute [] or- 
ders" from the "command structure"? 204 

But there was a further qualification. Judge Walton explained that it is not 
enough that a person was part of the chain of command of the organization-as-a- 
whole. Rather, the person must be part of the specific chain of command associated 
with "the enemy force's combat apparatus." 205 To be sure, Judge Walton was trying 
to make the point that even a logistics officer for al Qaeda could be detained if part 
of al Qaeda's military chain of command. 206 And he did also explicitly recognize 
that a person who at one point in time was performing a non-military function 
may well be subject to orders to shift to a military function after all, and hence 
should not be treated as a non-combatant. 207 Nonetheless, this approach did nec- 
essarily embrace the notion of distinct "military" and "civilian" wings in such 
groups, with the personnel of the latter at least sometimes lying beyond the reach of 
the AUMF for any purpose, including not just detention authority but also the 
authority to target with lethal force. 

In this way, Judge Walton's opinion in Gherebi at least partially supported the 
government's assertion that the AUMF conferred authority to detain the members 
of groups such as al Qaeda and the Taliban. As for the government's claim that the 
AUMF also conferred authority to detain independent supporters of such groups, 
however, Judge Walton was less accommodating. He did not directly reject that 
claim. But he did insist that any support-based detention must comply with the 
"structured role" test described above, which effectively folded the support inquiry 
into the membership standard after all. 208 Put simply, no purely independent sup- 
porter could be detained under that test (or, presumably, targeted with lethal 
force). A contrary reading, Judge Walton asserted, would cause the AUMF to con- 
flict with LOAC, and he was unwilling to impute such a reading to the statute ab- 
sent a clearer showing of legislative intent to accomplish such an end. 209 In this 
way, Judge Walton broke with the more accommodating approach of Judge Leon. 

Obviously Judge Walton's approach embraces the relevance of LOAC and the 
premise that the United States in at last some current settings is involved in non- 
international armed conflict — and he offers a highly specific interpretation of what 
LOAC has to say about who may be detained (or targeted) as a result. Indeed, 

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Who May Be Held? Military Detention through the Habeas Lens 

driving home the point that his reasoning applied as much to targeting as to deten- 
tion, he routinely cross-references targeting authority as turning on the exact same 
standards. 

Just a few weeks after Judge Walton's opinion in Gherebi, Judge Bates issued his 
ruling in Hatnlily. 210 For the most part, his analysis followed Judge Walton's. He 
agreed, for example, that LOAC permitted detention based on membership status 
even in the non-international conflict setting, notwithstanding the lack of affirma- 
tive treaty language to that effect. 211 And he agreed, too, that in this context "mem- 
bership" boils down to whether the individual "receives and executes orders or 
directions" as part of an AUMF-covered group's command structure. 212 Unlike 
Judge Walton, however, he did not distinguish between the military and non-military 
wings of an organization, and thus did not restrict eligibility to persons subject to a 
military-specific chain of command. 213 Hamlily, in other words, appears more akin 
to the Mukasey opinion in Padilla and, perhaps, the Judge Traxler opinion in Al- 
Marri. 

Whether Judges Walton and Bates differ with respect to non-members who 
provide substantial support to AUMF-covered groups is less clear. On one hand, 
Judge Bates concluded that LOAC simply does not permit military detention of 
such a person (though like all the other judges to address this question, he did not 
address the potential relevance of the security internment option that would be 
available in such circumstances in the event of international armed conflict). 214 On 
the other hand, he noted that membership in organizations such as al Qaeda may 
be more of a functional than a formal concept, and that conduct that one might de- 
scribe as independent support could well be conceived instead as evidence of func- 
tional membership in some instances. 215 That said, even a functional member must 
still be shown to be part of the group's chain of command in order to be detained 
under the Hamlily model; truly independent supporters may not be detained no 
matter how important their aid might be to the group. 216 

Gherebi and Hamlily thus are best as consistent on the point that non-members 
may not be detained, and consistent as well on the point that membership ulti- 
mately turns on participation in a chain of command. They appear to differ, how- 
ever, with respect to whether detention authority is limited to the "military" chain 
of command within an organization — though the magnitude of that difference 
very much depends on how strictly one defines "military" in this context. 

Adding to the confusion, other district judges subsequently disagreed with one 
another regarding whether there is a genuine difference between Gherebi and 
Hamlily. Judge Hogan, for example, has argued that there is not a substantial dif- 
ference. 217 Judge Kessler, on the other hand, states that there is, and that she prefers 
the Gherebi approach. 218 Meanwhile, Judge Urbina in Hatim v. Obama articulated 

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Robert M. Chesney 



an understanding of the chain-of-command test that very likely differs from what 
either Judge Walton or Judge Bates had in mind. 219 

In Hatim, Judge Urbina stated that he adopts the Hamlily standard, including 
the notion that detention authority turns on whether the person in question occu- 
pied a role within a relevant group's chain of command. 220 According to Hatim, 
however, merely notional status within a chain of command was not enough; one 
must have actually obeyed specific orders in the past in order to be a member in 
this sense, and hence to be detainable. 221 Thus, according to Judge Urbina, it was 
not enough for the government to prove that a person knowingly attended an al 
Qaeda training camp and that the individual believed that in doing so he or she 
had effectively joined al Qaeda. 222 It maybe that Judges Bates and Walton, or other 
judges following the Gherebi and Hamlily standards, might interpret the chain-of- 
command test in the same fashion. It seems equally if not more likely, however, 
that they would not. 

In any event, the nuanced disagreement among Judges Walton, Bates and Urbina, 
if disagreement there truly was, became moot once the chain-of-command question 
came before the D.C. Circuit Court of Appeals. In a series of cases in 2010, the Cir- 
cuit has expressly rejected the proposition that one must be part of any chain of 
command — let alone that of the military wing of an organization — in order to 
qualify as a member subject to military detention under the AUMF. 

The Circuit first made this point in Al-Bihani v. Obama, 223 in January 2010. In 
that case, a divided panel offered a number of important observations regarding 
the lawful scope of detention authority. To begin with, the majority opinion by 
Judges Kavanaugh and Brown broke sharply with most of the prior detention cases 
by concluding that LOAC simply has no bearing on the question of who lawfully 
may be detained without criminal charge in this setting. 224 That is to say, Al-Bihani 
broke new ground in the habeas litigation by holding that only domestic law 
sources should be considered in the course of determining the legal bounds of 
detention authority. 

Absent reference to LOAC, however, how was the broad language of the AUMF 
to be construed? As noted, the AUMF itself provides some guidance at the group 
level, but almost no guidance at all at the individual level. Other domestic law 
sources would be needed, therefore, in order to address what conduct or status suf- 
ficed to link a person to an AUMF-covered group for detention purposes. And ac- 
cording to the majority in Al-Bihani, the personal jurisdiction provisions found in 
the MCA 2006 and MCA 2009 provided the necessary guidance. 225 

Those provisions clearly stated that military commissions may entertain pro- 
ceedings against non-citizens who are members of AUMF-covered groups and also 
those who are non-members but who nonetheless provide support to such groups. 

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Who May Be Held? Military Detention through the Habeas Lens 

Asserting that a person subject to military commission prosecution under the two 
MCAs a fortiori would be subject to detention under the AUMF, the panel majority 
in Al-Bihani concluded that independent support thus constitutes a sufficient con- 
dition for detention separate and apart from proof of membership in an AUMF- 
covered group. 226 

As for the meaning of membership, the panel majority rejected the view ad- 
vanced by Judge Walton in Gherebi, Judge Bates in Hamlily and Judge Urbina in 
Hatim to the effect that proof of membership requires some kind of participation 
in a group's chain of command. 227 But if the chain-of-command test did not define 
membership, what criteria would? Here the opinion was less clear, except as to two 
remarkable points. First, Al-Bihani asserted that a person should be deemed a 
member and hence subject to detention in the event that he attended a training 
camp sponsored by an AUMF-covered group. 228 Second, it raised the possibility 
that merely having stayed at a guesthouse associated with an AUMF-covered 
group's recruitment process might also constitute adequate evidence of member- 
ship and detainability. 229 These statements were dicta and hence not binding on 
the district court, yet they certainly signaled a broad conception of membership — 
arguably broader than anything previously endorsed in the habeas litigation, either 
before Boumediene or since. 

Subsequent decisions by the Circuit largely reinforced Al-Bihani. To be sure, 
some of Al-Bihani y s punch was diluted by the fact that a majority of the active 
judges of the Circuit declared the panel's views about the irrelevance of interna- 
tional law to be mere dicta, in the course of "denying" en banc review. 230 The dicta- 
fication of that aspect of the panel opinion did not necessarily undermine the sup- 
port and membership aspects of the earlier decision, however, as the panel had also 
observed that it found "Al-Bihani's reading of international law to be unpersua- 
sive." 231 More significantly, subsequent Circuit decisions have reinforced key as- 
pects of the Al-Bihani panel opinion. 

First, the unanimous opinion in Awad v. Obama 232 — by Chief Judge Sentelle 
and Judges Tatel and Garland — restated the point that one need not be part of a 
chain of command in order to be detainable. 233 This would be useful evidence of 
membership, of course, but membership also could be shown by proof that a per- 
son self-identified as part of an AUMF-covered group or was captured in circum- 
stances amounting to fighting on behalf of such a group. 234 And in Barhoumi v. 
Obama, 235 Judges Tatel, Ginsburg and Kavanaugh joined to state once again that 
the chain-of-command test is not a necessary condition for detention, though it 
happened to be satisfied in that case and did count as a sufficient condition. 236 

Neither Awad nor Barhoumi provided the D.C. Circuit with an opportunity to re- 
visit or refine Al-Bihams favorable treatment of independent support as a distinct 

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Robert M. Chesney 



ground for detention. Many thought that the next decision — Bensayah v. Obama — 
would do so. Bensayah himself was the last of the original Boumediene petitioners, 
the only one whom Judge Leon found was subject to detention after remand from 
the Supreme Court. And as noted above, Judge Leon had expressly approved reli- 
ance on independent support as a ground for detention in that case. Indeed, he had 
found Bensayah subject to detention not for being an al Qaeda member, but in- 
stead for having provided support to al Qaeda (in the form of facilitating the travel 
of would-be fighters to Afghanistan). A casual observer might have assumed, 
therefore, that the appeal would oblige the D.C. Circuit to give further consider- 
ation to the sufficiency of independent support as a detention ground. 

A more rigorous observer, on the other hand, would anticipate that the Circuit's 
decision would focus on the membership ground instead. Several months earlier, 
Charlie Savage of the New York Times had reported the existence of a "pro- 
nounced" disagreement among "top lawyers in the State Department and the Pen- 
tagon," as well as the Justice Department and other agencies, with respect to "how 
broadly to define the types of terrorism suspects who maybe detained without trial 
as wartime prisoners." 237 According to Savage's account, the debate arose initially 
when the government was obliged to develop its revised detention position in 
Hamlily. 238 As noted above, the government ultimately chose to make some 
changes to its position, but did not abandon the claim that it had authority to de- 
tain both members and non-member supporters of AUMF-covered groups. This 
did not end the internal debate, however, but instead merely delayed it until such 
time that the administration might be faced with the choice of whether to defend a 
specific case on independent support grounds. 239 

The need to develop a position on appeal in the Bensayah litigation, Savage 
wrote, provided just such an occasion: 

The arguments over the case forced onto the table discussion of lingering discontent at 
the State Department over one aspect of the Obama position on detention. There was 
broad agreement that the law of armed conflict allowed the United States to detain as 
wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers 
who took positions alongside the enemy force and helped it. But some criticized the 
notion that the United States could also consider mere supporters, arrested far away, to 
be just as detainable without trial as enemy fighters. 240 

Assuming the accuracy of this account, then, the specific dispute involved the con- 
junction of the independent support ground with the use of detention authority 
for captures away from the conventional battlefield. Savage reported that the State 
Department's newly arrived Legal Adviser, Harold Koh, championed the view "that 
there was no support in the laws of war" for the claim of detention authority in that 

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Who May Be Held? Military Detention through the Habeas Lens 

circumstance, while the Defense Department's General Counsel, Jeh Johnson, dis- 
agreed. 241 Savage indicates that the question was then put to the Justice Depart- 
ment's Office of Legal Counsel, which eventually produced an equivocal 
memorandum "stating that while the Office of Legal Counsel had found no prece- 
dents justifying the detention of mere supporters of Al Qaeda who were picked up far 
away from enemy forces, it was not prepared to state any definitive conclusion." 242 
Nonetheless, a position was needed for the Bensayah appeal. 243 According to 
Savage's account, the solution was to "try to avoid that hard question" by 
"changing] the subject" in Bensayah. Rather than defend the decision below on 
the ground relied upon by Judge Leon — i.e., that Bensayah could be detained be- 
cause he provided support to al Qaeda — the government would instead seek 
affirmance on the ground that Bensayah was a functional member of al Qaeda. 244 
And thus the Justice Department's Civil Division came to make a most unusual fil- 
ing on the eve of oral argument in the case, explaining to the court in a brief letter 
that the "Government's position is that this case is best analyzed in terms of 
whether Bensayah was functionally 'part of al Qaida, and that the district court's 
judgment can and should be affirmed solely on that ground." 245 In an indication 
that the internal debate had not yet been resolved, however, the letter added that 

the Government is not foreclosing its right to argue in appropriate cases that the 
AUMF, as informed by the laws of war, permits detaining some persons based on the 
substantial support they provide to enemy forces, even though such persons are not 
themselves "part of those forces. The Government continues to defend the lawfulness 
of detaining certain individuals who provide substantial support to, but are not part of, 
al Qaida or the Taliban. 246 

At the time he wrote, Savage did not know how this strategy would play out with 
the D.C. Circuit. Nonetheless, he concluded his account with a perceptive observa- 
tion regarding the larger significance of the issue: "The outcome of the yearlong de- 
bate could reverberate through national security policies, ranging from the 
number of people the United States ultimately detains to decisions about who may 
be lawfully selected for killing using drones." 247 

Some nine months later, in late June 2010, the Circuit reversed in Bensayah v. 
Obama. 24 * But it is far from clear that the government's decision not to advance 
the independent support argument caused that outcome, nor that geographic 
constraints entered into the analysis. In addition to limiting its legal theory on ap- 
peal, the government also had decided not to continue to rely on certain 
inculpatory statements that had been made by another detainee. The latter move 
appeared to be the decisive one. The panel held that the remaining evidence did 
not suffice to prove that Bensayah had engaged in the recruiting and logistical 

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Robert M. Chesney 



support activities that the government had alleged, and hence that the govern- 
ment had failed to show that Bensayah was a functional member of al Qaeda. By 
the same token, presumably, this same body of evidence would not have sufficed 
even if the government had advanced its original independent support theory. In 
any event, the litigation continues; the Circuit remanded the case not with orders 
to grant Bensayah's petition, but rather for Judge Leon to reconsider the merits, 
including any new evidence of functional membership that the government might 
put forward. 

Thus we are left with an unusual state of affairs. After the majority of the district 
judges to consider the question rejected the proposition that the government law- 
fully may assert authority to detain independent supporters of AUMF-covered 
groups, the Circuit took the contrary view. In the meantime, however, the execu- 
tive branch itself appears to have become internally divided on the question, and 
for the moment appears disinclined to take advantage of the Circuit's position on 
the matter — at least where the independent support occurs in a place geographi- 
cally remote from a conventional battlefield. 

The Circuit has not had an opportunity to weigh in on the independent support 
question since Al-Bihani and Bensayah. The next two circuit opinions instead 
touched lightly on other aspects of the substantive- scope issue. Shortly after 
Bensayah, for example, the Circuit in Al Odah v. Obama affirmed the detention of 
an individual on membership grounds. 249 The most notable aspect of the case, for 
present purposes, was the fact that the opinion by Chief Judge Sentelle and Judges 
Rogers and Garland restated Al-Bihani s suggestion that training camp attendance 
alone might well be sufficient to make out the case for detention on membership 
grounds. Then, two weeks later, Judges Randolph, Henderson and Kavanaugh in 
Al Adahi v. Obama found that evidence of a detainee's attendance at a training 
camp and guesthouse constituted powerful evidence of functional membership, 
and sharply criticized a district judge for suggesting otherwise. 250 

In contrast, the Circuit has had a chance since Bensayah to comment — albeit 
only implicitly — on the question of geographic constraints at least in the context of 
membership-based detention. In Salahi v. Obama, in November 2010, a circuit 
panel dealt with a Mauritanian detainee whom the government alleged to be an al 
Qaeda member but who was not captured in Afghanistan nor alleged to have been 
involved in combat in or near Afghanistan (at least not after the early 1990s). 251 
The appellate panel expressed no concerns about the theoretical assertion of deten- 
tion authority in such circumstances, but instead remanded so that the district 
court could reweigh the evidence under a different standard. Implicit rejection of 
geographic constraints in the membership setting, of course, does not compel the 
same with respect to detention based solely on independent support. 

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Who May Be Held? Military Detention through the Habeas Lens 

c. That Which Is Now Clear and That Which Remains Contested. As a result of 
the foregoing string of D.C. Circuit decisions, an important aspect of the govern- 
ment's detention authority appears settled, at least at a high level of generality and at 
least for the moment. Specifically, the Circuit has developed a broad consensus to the 
effect that membership in an AUMF-covered group is a sufficient condition for de- 
tention. But other questions remain. What precisely counts as membership in a clan- 
destine, diffused network such as al Qaeda? Does independent support provide an 
alternative ground for detention? Does the location of a person's capture or underly- 
ing activities matter under either the membership or support criteria? 

With respect to the detailed meaning of membership, some things have been 
made clear while others remain uncertain — perhaps inevitably so. The cases do es- 
tablish that proof of participation in a formal chain of command would be suffi- 
cient but is not necessary to demonstrate membership. They are relatively clear, 
moreover, that training camp participation is highly significant to prove member- 
ship, if not a sufficient condition to do so on its own, and the cases further suggest, 
albeit with less force, that the same may be true for guesthouse attendance in at 
least some contexts. Absent those elements, however, it remains unclear which 
forms of involvement with the affairs of an AUMF-covered group distinguish 
those who can be detained from those who cannot. In that circumstance, the ques- 
tion would seem to depend upon the gestalt impression conveyed by the totality of 
the circumstances, measured against unspecified — and potentially inconsistent — 
metrics of affiliation held by particular judges. Consider, in that regard, the way in 
which Judge Bates summarized the task in a recent, post-Al-Bihani opinion: 

* [T]here are no settled criteria" for determining who is "part of the Taliban, al-Qaida, 
or an associated force. "That determination must be made on a case-by-case basis 
by using a functional rather than formal approach and by focusing on the actions of 
the individual in relation to the organization." The Court must consider the totality of 
the evidence to assess the individual's relationship with the organization. But being 
"part of the Taliban, al-Qaida, or an associated force requires "some level of knowl- 
edge or intent." 252 

Even when the training camp or guesthouse elements are present, moreover, it 
is not clear that they will always suffice. Indeed, one of the first district court 
opinions to emerge against the backdrop of the Circuit's interventions directly 
challenged the relevance of guesthouse attendance, arguing that the connotations 
of guesthouse attendance vary depending on the house in question and that resi- 
dence at the guesthouse in that particular case was not necessarily inculpatory. 253 
On the other hand, another recent district court opinion gives substantial weight 
to the fact that a detainee attended a Taliban-controlled guesthouse, particularly 

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Robert M. Chesney 



when viewed in combination with evidence that a Taliban recruiter gave the 
man money, a passport and a ticket for air travel, and that the man twice went 
near to the front lines and received a weapon from a person who likely was a 
Taliban member. 254 

Note that similar disagreements could yet emerge in connection with the train- 
ing camp variable. Like guesthouses, training camps can vary in terms of their 
provenance and connotations. Some clearly were or are operated by al Qaeda or 
the Taliban, but not all were; fact patterns may arise that raise difficult questions of 
attribution and inference. 255 Of course, it maybe that no further refinement of the 
variables defining membership is possible in this setting, and that the status quo 
represents the realistic maximum when it comes to defining this criterion (though 
it should at least be possible to clarify the geographic question). 

In any event, the status quo certainly has not settled the separate question of 
whether detention may be predicated on a showing of independent support to an 
AUMF-covered group — nor whether, if such a criterion is legitimate, it must be 
limited to persons who were captured or acted in certain geographic locations, or 
for that matter whether it must be confined to only certain types of support or to 
support rendered with certain specific mental states. 

Finally, the question of geography continues to loom large in the substantive- 
scope debate. Recent litigation associated with alleged plans to conduct a targeted 
killing of an American citizen in Yemen, on the ground that the individual was an 
operational leader of al Qaeda in the Arabian Peninsula, has sharpened the debate 
as to whether LOAC's field of application is strictly limited to geographically de- 
fined battlefields of a conventional nature or if, instead, any LOAC-related au- 
thority to use force attaches to at least some enemy- affiliated personnel wherever 
they may travel (or, more narrowly, to such persons when they are located in de- 
nied or ungoverned areas). 256 The question is at least as pertinent in the detention 
context. As noted above, at least two of the Guantanamo habeas cases thus far — 
Bensayah and Salahi — involved detainees with remote or no linkages to any tradi- 
tional battlefield, and the judges in those instances expressed no particular con- 
cerns on that point — though they did not expressly address the issue. The earlier 
experience of the Al-Marri litigation, meanwhile, suggests there may yet be judi- 
cial disagreement on the point. 

Overarching all these questions, finally, is the lingering disagreement regarding 
which bodies of law actually govern. The Al-Bihani panel opinion sought to resolve 
this dispute by forbidding reference to LOAC and other forms of international law. 
Though the Circuit majority subsequently neutered that claim by declaring it to be 
dicta, it did not go so far as to issue a contrary holding to the effect that any such 
body of law does actually apply. In any event, as Part I illustrated, determining that 

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Who May Be Held? Military Detention through the Habeas Lens 

a particular body of law applies does not ensure agreement as to what that body of 
law requires when it comes to selecting and calibrating the variables that combine 
to form the individualized detention standard. 

HI. The Significance of the Emerging Law Governing Detention Criteria 

In the wake of this descriptive account, several questions arise. First, does it actually 
matter that the habeas process has not yet resolved the disagreements and unan- 
swered questions noted in Part II? Second, if this does matter, is it preferable to 
simply be patient, leaving the matter in judicial hands, or instead should Congress 
intervene with legislation? 

A. Do the Disagreement and Uncertainty Matter? 

The persistence of disagreement and unresolved questions regarding the substantive- 
scope issue in the habeas litigation is problematic on many levels. First, the 
uncertainty and disagreement may prove significant with respect to the many as- 
yet-undecided Guantanamo habeas cases. True, the vast majority of the Guan- 
tanamo habeas cases to this point have turned on other issues — above all, ques- 
tions of evidentiary sufficiency. Only Basardh, in which Judge Huvelle made an 
ill-fated attempt to limit detention authority to circumstances in which a person 
was likely to cause harm if released, clearly turned on an issue involving the scope 
of detention authority that the judge in question was prepared to recognize. But 
much more habeas litigation is to come, and hence this question may yet prove 
dispositive for some Guantanamo detainees. No one can say for sure precisely 
how many cases may yet proceed to the merits, but it seems likely that we are not 
yet halfway through. We cannot know at this point whether the substantive-scope 
question will remain marginal to the merits. If it does become central in these 
future cases, the continuing uncertainty surrounding the question is problematic 
from both the detainee and the government perspectives. 

Second, the pool of habeas cases eventually may encompass more than the 
Guantanamo detainees. Whether this will come to pass most likely depends, how- 
ever, on whether the United States resumes the practice of taking long-term cus- 
tody of individuals captured outside of States in which conventional armed 
conflict is occurring. This issue has been tested to some extent in the context of Af- 
ghanistan. Attorneys representing a group of US military detainees in Afghanistan 
have been attempting for several years now to establish habeas jurisdiction over 
detention operations there. They met with mixed success at the district court level, 
with Judge Bates holding that non-Afghans may pursue habeas relief if captured 
outside of Afghanistan and brought there for detention by the United States, 

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Robert M. Chesney 



whereas none of those actually captured in Afghanistan could do so. 257 A D.C. Cir- 
cuit panel subsequently reversed on the first point only, explaining that "all of the 
attributes of a facility exposed to the vagaries of war are present in Bagram" and 
that the US detention facility in Afghanistan (then at Bagram, today in Parwan) is 
in "territory under neither the de facto nor de jure sovereignty of the United States 
and within the territory of another de jure sovereign." 258 The court did not, how- 
ever, close the door to habeas jurisdiction entirely. The panel went out of its way to 
observe that there was no evidence in this case that the detainees had been brought 
into Afghanistan in order to evade judicial review, as their transfer occurred long 
before Boumediene rendered Guantanamo subject to judicial review. 259 The panel 
warned that if "such manipulation by the Executive" were proven in a future case, 
the outcome might be different. 260 In the course of remanding that case to Judge 
Bates for further proceedings, moreover, the Circuit noted that it might take a dif- 
ferent view even in that very case should new evidence emerge regarding the nature 
of US detention operations in Afghanistan. 

Given that the United States is actively engaged in a process meant to culminate 
in the transfer of control over its long-term detention operations in Afghanistan to 
the Afghan government (just as we already have transferred control of our deten- 
tion operations in Iraq to the government there), and absent evidence that the 
United States is still in the business of capturing persons elsewhere and bringing 
them to Afghanistan for purposes of long-term detention, it must be said that the 
prospects for an extension of habeas to Afghanistan are increasingly slim notwith- 
standing these caveats. The more significant lesson from the Afghan habeas litiga- 
tion, therefore, is that courts going forward likely would be receptive to an 
extension of habeas to any location should the United States in the future resume 
the practice of taking and maintaining military custody of individuals captured 
outside of a traditional battlefield context. It may be that the United States will 
avoid that practice in the future, substituting some combination of rendition, host- 
nation detention, 261 targeted killing, surveillance, prosecution or inaction in its 
place. But if the practice of long-term detention for non-battlefield capture re- 
emerges, so too will the questions surrounding habeas jurisdiction. 

Even if habeas jurisdiction remains limited to Guantanamo, however, there are 
still other reasons to believe the uncertainty associated with the substantive-scope 
jurisprudence to be problematic. Most significantly, the struggle over who may be 
held matters not only for those detainees who already have or may one day receive 
the right to seek habeas review but also for any detention operations that ultimately 
depend upon the same underlying legal authority — i.e., the AUMF. That is to say, 
if judges determine in the habeas setting that the AUMF extends only to certain 
groups or fact patterns, commanders and policymakers must take that judgment 

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Who May Be Held? Military Detention through the Habeas Lens 

into account whenever acting under that same authority — whether subject to ha- 
beas review or not. In practical terms, this means that the habeas jurisprudence can 
and presumably will impact all AUMF-based detention operations — including 
specifically all detention operations in Afghanistan — even though very few 
detentions beyond Guantanamo are or likely ever will be subject to direct habeas 
review. Civilian government lawyers advising policymakers, and military judge ad- 
vocates advising commanders in the field, have an obligation to take account of 
this caselaw in the course of devising policy and procedure regarding who may be 
detained prospectively and what standard should be employed when carrying out 
screening of detainees post-capture. In this way, the detention-scope jurispru- 
dence arising out of Guantanamo could come to impact a far greater number of de- 
tainees. Unfortunately, policymakers and commanders at the moment lack clarity 
regarding the boundaries of their authority, yet have little choice but to proceed in 
the shadow of this uncertainty. 

Making matters worse, spillover effects from the Guantanamo habeas might not 
be limited to detention operations. The effects may extend to AUMF-based target- 
ing decisions as well. That is to say, the detention-scope debate may overhang the 
decision to kill under color of the AUMF as much it overhangs the decision to de- 
tain under that authority. 

The point is not an immediately obvious one; the power to kill and the power to 
detain are by no means coextensive. But they need not be coextensive in order for 
the Guantanamo habeas litigation to impact the legal bounds of targeting authority 
elsewhere. Again, the AUMF is the transmission mechanism. Say that in the course 
of the habeas litigation, courts ultimately determine that the AUMF must be con- 
strued to apply only to sworn members of al Qaeda and the Taliban who have re- 
ceived military-style training. Assume further that a commander subsequently 
desires to launch a missile from a drone into the window of a car being driven in 
Yemen by a local man whom he believes to act as a fund-raiser for al Qaeda — but 
whom he also knows has not sworn an oath to al Qaeda or attended any training 
camps. The strike on its face would not be an exercise of force supported by the 
AUMF, whatever its consistency with LOAC or IHRL. 

It may be that the strike could yet be justified, but the important point for pres- 
ent purposes is that the issue at the very least would be clouded by the narrowing 
construction of the AUMF produced via the habeas litigation. Thus military opera- 
tions not directly subject to judicial review 262 nonetheless may be impacted indi- 
rectly by the development of detention-scope jurisprudence. And as in the 
detention context, the dynamic matters not so much because it exists, but rather 
because it is transmitting uncertainty. 



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Robert M. Chesney 



Finally, the habeas litigation may also generate spillover effects by virtue of the 
fact that the judges in the course of resolving the detention-scope issue have en- 
gaged with concepts that are both contested and likely to arise in future, unrelated 
contexts involving military force. This is most obviously the case with respect to the 
episodes in which judges have grappled with the meaning of "direct participation 
in hostilities" in an effort to clarify the scope of the government's detention 
authority. The merits of referencing DPH for this purpose are considered above. 
For now, the important point is that when courts do make use of DPH in this way, 
they maybe obliged to define this deeply contested concept. And once they do this, 
their opinion will matter at least to an extent in any subsequent context in which 
that LOAC concept matters — without regard to whether that subsequent context 
has anything to do with the AUMF. Any future armed conflict implicating the 
DPH question — which is to say, any future armed conflict — henceforth would 
take place in the shadow of that earlier opinion. Much the same might be said for 
frequently employed statutory language like "all necessary and appropriate force," 
moreover. 

B. Should Congress Intervene? 

Assume for the sake of argument that the emerging habeas jurisprudence does in- 
deed involve a substantial degree of disagreement and uncertainty with respect to 
individualized detention criteria, and that this disagreement and uncertainty are 
important in relation to future cases and to other, collateral matters. It does not fol- 
low automatically that Congress should step in with legislation designed to address 
the situation. 

One might oppose legislative intervention on the ground that the process of re- 
fining the law in this area should be left in the hands of the judiciary. Judges, after 
all, routinely disagree about fine points of law concerning complex subjects, and 
the appellate review over time will tend to smooth out such discrepancies in the 
traditional common law fashion. This is, in fact, the argument advanced by a pair 
of advocacy groups — Human Rights First and the Constitution Project — in a doc- 
ument titled Habeas Works: Federal Courts' Proven Capacity to Handle Guan- 
tanamo Cases: A Report from Retired Federal Judges. 263 The report contends that the 
"lower courts are steadily progressing toward a workable detention standard," 264 
and denies that judges have to "draft" a substantive standard or otherwise are en- 
gaged in a "lawmaking" process. What the judges are doing instead, the report ar- 
gues, is merely "interpreting and applying" the detention standard established by 
Congress and the President in the AUMF as informed by the laws of war. 265 To the 
extent that the report acknowledges any variation among the judges, it character- 
izes that variation benignly as the mere "gradual exploration and shaping of the 

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Who May Be Held? Military Detention through the Habeas Lens 

detention standard," in traditional common law-like fashion. 266 Habeas Works 
concludes that "there is no reason to doubt the ability of the three-level federal 
court system to develop a substantive detention standard." 267 

That last claim no doubt is correct. As Judge Wilkinson's opinion in Al-Marri il- 
lustrates, judges can undertake to develop detention standards meant to conform 
to the peculiarities of the non-State-actor context. And so too no one doubts that 
the common law process in theory can smooth out the many disagreements that 
actually arise when judges undertake to do this, much as courts in the past used 
case-by-case adjudication to develop and amend substantive rules for torts, con- 
tracts and the like. But this is a straw man argument. The important question is 
whether it would be better for Congress to play the primary role in crafting the 
details of the detention standard. 

There are several factors to consider in thinking about this question. First, one 
could select between these approaches based on the normative desirability of the 
substantive standard one believes is most likely to be produced in the end by each. 
On close inspection, however, the two options may be close to a wash along this 
dimension. 

Those who would prefer to see greater restraints on the government's capacity 
to detain might at first blush be inclined to disfavor legislation on the theory that 
Congress most likely would adopt a broad detention standard and that the judi- 
ciary over time will settle upon a more constrained approach. Proponents of a 
broad standard, by the same token, might favor legislation for the same reason. The 
Democratic-controlled Congress in 2009 and 2010 persistently used the power of 
the purse to make it more difficult for the President to close Guantanamo, after all, 
and the Republican takeover of the House in 2010 might be expected to tilt Con- 
gress still further toward erring on the side of facilitating rather than restraining 
military detention. But careful consideration of the trends in the caselaw described 
in Part II suggests that it would be unwise to assume that the judiciary in the end 
will adopt narrower tests. The sequence of D.C. Circuit opinions in 2010, begin- 
ning but by no means ending with Al-Bihani, if anything suggests the contrary. 
And though many of the Circuit's decisions are now the subject of pending certio- 
rari petitions, it would be foolish to assume that the Supreme Court will both take 
up the substantive-scope question and adopt more constrained positions with re- 
spect to it; Justice Kagan is recused from these cases in light of her recent role as the 
Solicitor General, and Chief Justice Roberts and Justices Scalia, Thomas and Alito 
are unlikely to be interested in such a narrowing approach. 

Fear of, or desire for, a broad detention standard accordingly does not point 
clearly in favor of or against legislative intervention. What other factors, then, 
might one bring to bear in developing a well-considered position on the question? 

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Robert M. Chesney 



Second, one could focus on the democratic pedigree of the resulting rule set. 
That is, one might favor legislative intervention because the lawmaking process 
would do more to contribute to a national debate and public engagement on the 
question, and the resulting rules would in any event bear a superior stamp of dem- 
ocratic legitimacy. In response, one might note that we routinely have relied on 
common law processes to develop and refine rules in other important settings. But 
it is not clear we ever have done so in a context that impacted contemporaneous 
military operations to this extent. Here, the question at issue is one that speaks di- 
rectly to an issue of pressing national concern: just who is it that the United States 
purports to be at war with? A strong argument can be made that the United States 
has a moral obligation to engage in a forthright national debate on this subject if we 
are to have military detention at all; indeed, that argument has been made, and it is 
rather convincing. 268 

Third, one might favor or disfavor legislation on grounds of speed and finality 
in light of my argument that lingering uncertainty regarding the precise bound- 
aries of detention authority is harmful. For example, one might argue that legisla- 
tion will settle the substantive-scope question more quickly than the ongoing 
process of common law development. That process, after all, dates back at least to 
the initial decision by Judge Mukasey in Padilla in late 2002, and does not seem 
likely to end anytime soon. Anticipating this concern, Habeas Works argues that 
some amount of residual ambiguity — and thus some need for case-by-case clarifi- 
cation — invariably will remain even in the event of a legislative intervention. 269 
This is true, but the reduction in ambiguity via a statute if carefully designed could 
reduce the total amount of work left to be accomplished through the habeas lens. 
Then again, an inartfully drafted statute could achieve the opposite by introducing 
entirely new ambiguities and undoing points of consensus already established 
through the existing habeas jurisprudence. 

Fourth, one might take account of the fact that legislative rulemaking as a 
general proposition is more easily revisited than rules derived through the ha- 
beas process. Should experience demonstrate that a statutory definition of the 
bounds of detention authority is too broad or too narrow, that definition can be 
revised in the ordinary course of further legislation. Inclusion of a sunset provi- 
sion in legislation, moreover, could guarantee periodic reassessment. Judicially 
crafted rules are not so readily altered, however. The judiciary is reactive rather 
than proactive. It must have a case or controversy in order to have the occasion to 
take up a question, and hence the opportunity to revise the substantive scope of 
detention authority may or may not be there even if the existing standard proves 
unwise. Even assuming a proper case arises, moreover, the time lag between the 
beginning of a case and final judgment by the last court to consider the matter 

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Who May Be Held? Military Detention through the Habeas Lens 

can be substantial — particularly if it is necessary for the Supreme Court to inter- 
vene in order to limit or reverse precedent. 

These factors, taken together, incline me to think that legislation on the 
substantive-scope question would in fact be desirable, at least in the abstract. In 
particular, it would be desirable to have express statutory language that 

• confirms that membership in an AUMF-covered group is a sufficient condi- 
tion for detention; 

• provides that participation on such a group's chain of command, knowing 
attendance at a military- style training camp operated by such a group and perhaps 
other factors constitute substantial but not dispositive evidence of membership; 

• articulates a mens rea standard for membership, such as a requirement that 
the individual not only knew the identity of the group but intended to become an 
active participant in its affairs and thereby to facilitate, directly or indirectly, the 
unlawful ends of the group; 270 

• takes a clear position on whether the provision of support independent of 
membership can count as a sufficient condition to justify detention, and articu- 
lates a corresponding mens rea element such as intent to facilitate, directly or indi- 
rectly, the group's unlawful use of violence; and 

• specifies whether there are any geographic limitations as to the availability of 
detention (e.g., limiting detention to persons captured outside the United States, 
or limiting support-based detention to persons captured in connection with com- 
bat operations). 

All that said, any serious discussion of legislative intervention also must account for 
the fact that in no plausible scenario would Congress address only the substantive- 
scope question. Rather, if it reaches this question at all, Congress almost certainly 
would simultaneously address any number of other related matters, including the 
procedural and evidentiary rules associated with habeas review. Depending on 
what one expects Congress to produce on those issues, then, even someone who 
supports the idea of legislation on the substantive-scope question may conclude 
that legislation on the whole is undesirable. 

* * * 

We lack consensus regarding who lawfully may be held in military custody in the 
contexts that matter most to US national security today — i.e., counterterrorism 
and counterinsurgency. More to the point, federal judges lack consensus on this 
question. They have grappled with it periodically since 2002, and for the past three 
years have dealt with it continually in connection with the flood of habeas corpus 
litigation arising out of Guantanamo in the aftermath of the Supreme Court's 2008 



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Robert M. Chesney 



decision in Boumediene v. Bush. Unfortunately, the resulting detention jurispru- 
dence is shot through with disagreement on points large and small. As a result, the 
precise boundaries of the government's detention authority remain unclear de- 
spite the passage of more than nine years since the first post-9/11 detainees came 
into US custody. 

We should not be surprised at this disagreement. The conflicting efforts of the 
judges reflect the fact that the very metrics of legality are deeply contested in this 
setting. We do not agree which bodies of law should govern in the first instance 
and, even if we did, we then encounter indeterminacy and plausible disagreement 
with respect to what each body of law actually has to say, if anything, about the 
detention- scope question. Making matters worse, these difficulties arise in a con- 
text in which familiar legal frameworks experience substantial evolutionary pres- 
sures, making it difficult to distinguish descriptive and normative arguments 
about the legal limits of the government's authority. Against this backdrop it be- 
comes easy to see that the judges at times are speaking past one another, much as 
occurs in the larger public debate. 

Understandable or not, though, this state of affairs is problematic. Most obvi- 
ously, it renders the prospects for success in the Guantanamo habeas litigation un- 
certain for both the government and the detainees. More significantly, however, 
the failure to resolve the detention-scope question casts a shadow across an array of 
military activities that are not directly subject to habeas review. The mixed pro- 
nouncements overhang detention operations in Afghanistan that are not subject to 
habeas review, insofar as those detentions depend on the same underlying claims 
of authority that undergird the government's position in the Guantanamo litiga- 
tion. And by the same token, the habeas caselaw may have the same spillover effect 
on targeting operations — i.e., the use of lethal force — in places as varied as 
Pakistan, Yemen and Somalia. 

It is important to bring these disagreements, their causes and their conse- 
quences to the surface, and to push for their resolution. The Obama administra- 
tion, after all, is not going to abandon the use of military detention. The 
Guantanamo habeas litigation will not conclude for years to come. The use of de- 
tention in Afghanistan will persist for some time. Even in Iraq — even after the sup- 
posed end of combat operations — a small population of US-controlled military 
detainees continues to exist, and will do so for some time. Uses of lethal force, via 
drone strikes and otherwise, will continue with respect to al Qaeda targets in vari- 
ous spots around the world for the foreseeable future. Were it all to end tomorrow, 
moreover, we could still expect future situations to arise in which another adminis- 
tration decides to employ military detention in a setting involving terrorism or in- 
surgency, giving rise to the same set of issues. 

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Who May Be Held? Military Detention through the Habeas Lens 

Simply put, the problem is embedded in our evolving strategic context — partic- 
ularly in the perception that non-State actors have become increasingly empow- 
ered, to the point that some can pose a strategically significant threat. Insofar as law 
and strategic context exist in dynamic relationship with one another, then, the 
question is not whether the law will adapt to these circumstances. It will, sooner or 
later, more or less appropriately. The question, instead, concerns which institu- 
tions we will rely upon to mediate that process. 

Notes 

1. See, e.g., Center for Law and Military Operations, The Judge Advocate 
General's Legal Center and School, I Legal Lessons Learned from Afghanistan to 
IRAQ 53 (2004) (describing uncertainty regarding the status of the initial detainees in Afghani- 
stan in late 2001). 

2. See Robert Chesney, Iraq and the Military Detention Debate: Firsthand Perspectives from 
the Other War, 2003-2010, VIRGINIA JOURNAL OF INTERNATIONAL LAW (forthcoming 201 1). 

3. See infra Part II. 

4. More than 100,000 persons have been detained without charge in Iraq alone since 2003. 
See Chesney, supra note 2. The US detention facility in Parwan in Afghanistan holds approxi- 
mately 1,000 individuals at a time, and the prior primary detention facility in Afghanistan — the 
Bagram Theater Internment Facility — held approximately 600-800 at a time. See Spencer 
Ackerman, U.S. Scans Afghan Inmates for Biometric Database, WIRED (Aug. 25, 2010), http:// 
www.wired.com/dangerroom/2010/08/military-prison-builds-big-afghan-biometric-database/ 
(giving the figure for Parwan); Editorial, Backward at Bagram, NEW YORK TIMES, June 1 , 2010, at 
A26 (giving the figure for Bagram). Approximately 779 individuals have been held over time at 
Guantanamo. See BENJAMIN WlTTES & ZAAHIRA WYNE, THE CURRENT DETAINEE POPULATION 
OF GUANTANAMO: AN EMPIRICAL STUDY 1 (2008). Three more individuals — including one who 
for a time was held at Guantanamo — also were held in military custody inside the United States. 
See infra Part II. A. 

5. Compare Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the 
War on Terrorism, 118 HARVARD LAW REVIEW 2047, 2113 (2005) ("Terrorist organizations 
that act as agents of al Qaeda, participate with al Qaeda in acts of war against the United States, 
systematically provide military resources to al Qaeda, or serve as fundamental communication 
links in the war against the United States, and perhaps those that systematically permit their 
buildings and safehouses to be used by al Qaeda in the war against the United States, are analo- 
gous to co-belligerents in a traditional war") and Robert Chesney, More on the AQ/AQAP Issue, 
Including Thoughts on How the Co-Belligerent Concept Fits In, LAWFARE (Nov. 4, 2010), http:// 
www.lawfareblog.com/2010/ll/more-on-the-aqaqap-issue-including-thoughts-on-how-the-co 
-belligerent-concept-fits-in/ (exploring the co-belligerent issue) with Kevin John Heller, The 
ACLU/CCR Reply Brief in Al-Aulaqi (and My Reply to Wittes), OPINIO JURIS (Oct. 9, 2010), http:// 
opiniojuris.org/20 1 0/ 1 0/09/the-acluccr-reply-brief-in-al-aulaqi-and-my-reply-to-wittes/ (deny- 
ing that the co-belligerent concept applies as a matter of international law in the context of non- 
international armed conflict). 

6. The first habeas petition arising out of Guantanamo was filed within weeks of the first 
detainees' arrival there in January 2002. See Gherebi v. Bush, 374 F.3d 727, 729 (9th Cir. 2004). 
The Supreme Court finally settled the question as a constitutional matter in the summer of 2008, 

162 



Robert M. Chesney 



after two rounds of legislative intervention. See Boumediene v. Bush, 553 U.S. 723 (2008) (hold- 
ing that the Military Commissions Act of 2006 violated the Suspension Clause insofar as it for- 
bade Guantanamo detainees from seeking habeas relief in federal court). See also Rasul v. Bush, 
542 U.S. 466 (2004) (holding that the federal habeas statute as then written provided jurisdiction 
over the claims of Guantanamo detainees); Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding 
that the government failed to provide adequate process to a US citizen held in military custody 
on grounds of membership in the Taliban). 

7. 553 U.S. 723. 

8. See infra Part II.A. 

9. See infra Part II.B. 

10. See Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010). 

11. See Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) (Sentelle, C.J.) (opinion denying en 
banc review). 

12. For a review of a broad range of issues in the post-2008 habeas litigation, including the 
centrality of evidentiary questions, see BENJAMIN WlTTES, ROBERT M. CHESNEY & RABEA 
Benhalim, The Emerging Law of Detention: The Guantanamo Habeas Cases as 
LAWMAKING (2010), available at http://www.brookings.edu/papers/2010/0122_guantanamo 
_wittes_chesney.aspx. 

13. Cf Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (holding that habeas jurisdiction 
does not extend to Afghanistan, though noting caveats that preserve the possibility of a different 
outcome upon different factual predicates). 

14. See id. at 98-99. See also Al Maqaleh v. Gates, No. 09-5265 (D.C. Cir. July 23, 2010) (or- 
der noting that detainees in an attempt to obtain rehearing made reference to evidence not in the 
record, and stating that denial of habeas petition is "without prejudice to [detainees'] ability to 
present this evidence to the district court in the first instance"), available at http://www 
.scotusblog.com/wp-content/uploads/2010/07/Bagram-order-7-23-10.pdf. 

15. See infra Part III.A. 

16. But see Josh Gerstein, Treasury to Allow Anwar al-Awlaki Lawsuit, POLITICO, Aug. 3, 
2010, http://www.politico.com/news/stories/0810/40616.html (noting ACLU plans to sue to 
stop the lethal use of force by the US government against an American citizen in Yemen). 

17. Pub. L. No. 107-40, 115 Stat. 224 (2001), codified at 50 U.S.C. § 1541 note (Supp. V 2005) 
[hereinafter AUMF]. 

18. Cf Hamdi, 542 U.S. at 587 (Thomas, J.) ("Although the President very well may have in- 
herent authority to detain those arrayed against our troops, I agree with the plurality that we 
need not decide that question because Congress has authorized the President to do so."). Be- 
cause the current administration rests its detention-related arguments solely on the AUMF, and 
because it is not clear that the analysis ultimately turns on this issue in any event, for the most 
part in this article I refer only to the AUMF as a source of domestic detention authority. 

19. See U.S. CONST, art. VI, cl. 2 (providing that treaties are "supreme Law of the Land"). 

20. See Carlos Manuel Vazquez, The Military Commissions Act, the Geneva Conventions, and 
the Courts: A Critical Guide, 101 AMERICAN JOURNAL OF INTERNATIONAL LAW 73, 88 (2007) 
(examining various arguments relating to self- executing treaties and legislative efforts to 
unexecute them in relation to the Geneva Conventions). 

21. See U.S. Department of State, U.S. Government's 1-year Follow-up Report to the Com- 
mittee's Conclusions & Recommendations 1-2 (2007), available at http://200 1-2009. state 
.gov/documents/organization/ 100845.pdf. On the general issue of extraterritoriality, see 
Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Terri- 
toriality in American Law (2009). 



163 



Who May Be Held? Military Detention through the Habeas Lens 

22. See Ingrid Wuerth, International Law and Constitutional Interpretation: The Commander-in- 
Chief Clause Reconsidered, 106 MICHIGAN LAW REVIEW 61 (2007). 

23. See Bradley & Goldsmith, supra note 5; Ingrid Wuerth, Authorizations for the Use of 
Force, International Law, and the Charming Betsy Canon, 46 BOSTON COLLEGE LAW REVIEW 293 
(2005). 

24. See International Law Association, The Use of Force: Final Report on the Meaning of 
Armed Conflict in International Law (2010), available at http://www.ila-hq.org/download.cfm/ 
docid/2176DC63-D268-4133-8989A664754F9F87 [hereinafter ILA Use of Force Report]. 

25. See, e.g., Marco Sassoli, Terrorism and War, 4 JOURNAL OF INTERNATIONAL CRIMINAL 
JUSTICE 959, 965 (2006) ("As for the lower threshold of a non-international armed conflict, no 
clear-cut criteria exist, but relevant factors include: intensity, number of active participants, 
number of victims, duration and protracted character of the violence, organization and disci- 
pline of the parties, capacity to respect [international humanitarian law], collective, open and 
coordinated character of the hostilities, direct involvement of governmental armed forces (vs. 
law enforcement agencies) and de facto authority by the non-state actor over potential victims."). 

26. Jordan Paust, Responding Lawfully to al Qaeda, 56 CATHOLIC UNIVERSITY LAW REVIEW 
759, 760 (2007). 

27. See, e.g., Al-Aulaqi v. Obama, No. 10-cv-1469 (D.D.C. Oct. 8, 2010) (declaration of Pro- 
fessor Mary Ellen O'Connell), at 7 ("Armed conflict has a territorial aspect. It has territorial lim- 
its. It exists where (but only where) fighting by organized armed groups is intense and lasts for a 
significant period. . . . That the United States is engaged in armed conflict against al Qaeda in 
Afghanistan does not mean that the United States can rely on the law of armed conflict to en- 
gage suspected associates of al Qaeda in other countries."), available at http://www.aclu.org/ 
files/assets/0_Connell_Declaration. 1 008 1 0.PDF. 

28. See ILA Use of Force Report, supra note 24. 

29. 999 U.N.T.S. 171, 6 INTERNATIONAL LEGAL MATERIALS 368 (1967) [hereinafter 
ICCPR]. 

30. See infra Part I.B.3. 

31. ICCPR, supra note 29, art. 2. 

32. See U.S. Department of State, supra note 2 1 . 

33. See, e.g., Patrick Walsh, Fighting for Human Rights: The Application of Human Rights 
Treaties to United States Military Operations, 28 PENN STATE INTERNATIONAL LAW REVIEW 45, 
60 (2009). 

34. See infra Part ILA. 

35. For a sampling of this scholarship, see Marko Milanovic, A Norm Conflict Perspective on 
the Relationship Between International Humanitarian Law and Human Rights, 14 JOURNAL OF 
CONFLICT AND SECURITY LAW 459 (2009); Jeremy Marsh, Rule 99 of the Customary International 
Humanitarian Law Study and the Relationship between the Law of Armed Conflict and Interna- 
tional Human Rights Law, ARMY LAWYER, May 2009, at 18 (2009). 

36. For a more thorough exposition, see Laura Olson, Practical Challenges of Implementing 
the Complementarity Between International Humanitarian Law and Human Rights Law, 40 CASE 
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 437, 445-49 (2009). 

37. See, e.g., Martti Koskenniemi, International Law Commission, Study Group on 
Fragmentation, Fragmentation of International Law: Topic (a): The function and scope of the 
lex specialis rule and the question of 'self-contained regimes': An outline (2003), available at 
http://untreaty.un.org/ilc/sessions/55/fragmentation_outline.pdf (last visited Dec. 8, 2010). 

38. See, e.g., Jeff A. Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liabil- 
ity to Legitimacy, ARMY LAWYER, June 2010, at 9 (2010). 



164 



Robert M. Chesney 



39. See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 
I.C.J. 226, 240 (July 8). 

40. See, e.g., Olson, supra note 36. 

41. AUMF, supra note 17. 

42. Id. § 2(a). 

43. 18 U.S.C § 4001(a) (2000). 

44. 71 U.S. (4 Wall.) 2 (1866). But see Ex parte Quirin,317U.S. 1 (1942) (permitting military 
commission jurisdiction over an American citizen who was part of the German armed forces in 
World War II, and distinguishing Milligan on the ground that Milligan had not actually been 
part of the enemy force). 

45. AUMF, supra note 17. 

46. See infra Part II.B. 

47. We should not overstate the level of consensus with respect to the objects of the AUMF 
even at this group/organizational level, however, as there is ample room for disagreement re- 
garding the degree of institutional affiliation with al Qaeda or the Taliban that is necessary in or- 
der for other, arguably distinct entities to be deemed subject to the AUMF as well. There are 
numerous entities in the Afghanistan-Pakistan theater, for example, that are engaged to varying 
degrees in hostilities against the United States or the Afghan government yet do not constitute 
subsidiaries of either al Qaeda or the Taliban. The Haqqani Network provides an example, as 
might the Tehrik-i-Taliban Pakistan (not to be confused with the original Afghan Taliban com- 
manded by Mullah Omar, now best referred to as the Quetta Shura Taliban). Arguments can be 
made that AUMF-based authority extends to such groups as cobelligerents of al Qaeda and the 
Taliban, but the AUMF itself does not speak to the issue. Similarly, consider the al Qaeda "affili- 
ate" scenario represented by the Algerian extremist group once known as Groupe Salafiste pour 
la Predication et le Combat (GSPC) or the Salafist Group for Preaching and Combat. Its activi- 
ties primarily are directed toward the Algerian government, but Osama bin Laden may have pro- 
vided funding or otherwise assisted when GSPC originally broke off from the Groupe Islamique 
Arme in the 1990s. Its leadership declared allegiance to bin Laden in 2003, and in 2006 it changed 
its name to al Qaeda in the Islamic Maghreb (AQIM) after Ayman al-Zawahiri formally an- 
nounced its affiliation. For an overview, see Andrew Hansen & Lauren Vriens, Al-Qaeda in the 
Islamic Maghreb (AQIM), CFR.ORG (July 21, 2009), http://www.cfr.org/publication/12717/ 
alqaeda_in_the_islamic_maghreb_aqim_or_lorganisation_alqada_au_maghreb_islamique 
_formerly_salafist_group_for_preaching_and_combat_or_groupe_salafiste_pour_la_prdication 
_et_le_combat.html. When precisely, in light of all this, did AQIM become sufficiently linked to 
al Qaeda to be considered within the scope of the AUMF, if ever? The AUMF itself does not pro- 
vide guidance. 

48. See Bradley & Goldsmith, supra note 5. 

49. See Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and 
Military Detention Models, 60 STANFORD LAW REVIEW 1079, 1096-99 (2008). 

50. Pub. L. No. 109-148, div. A, tit. X, 1 19 Stat. 2680, 2739 (2005). 

51. Id. 

52. Id. 

53. Pub. L. No. 109-366, 120 Stat. 2600 (2006). 

54. See id. § 3 (adding 10 U.S.C. § 948c). 

55. See id. (adding 10 U.S.C. § 948a(l) and (2)). 

56. See Title XVIII of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 
No. 111-84, 123 Stat. 2190, enacted October 28, 2009). 



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Who May Be Held? Military Detention through the Habeas Lens 

57. Pub. L. No. 111-84, § 1802, 123 Stat. 2574, 2576 (2009) (adding 10 U.S.C. §§ 948a(7) 
(defining "unprivileged enemy belligerent") & 948c (defining jurisdiction to encompass alien 
"unprivileged enemy belligerents")). 

58. Id. (adding 10 U.S.C. § 948a(7)). 

59. Id. 

60. See also Richard H. Fallon Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive 
Rights, and the War on Terror, 120 HARVARD LAW REVIEW 2029, 2109 (2007). 

6 1 . See, e.g., CONGRESSIONAL RESEARCH SERVICE, AL QAEDA AND AFFILIATES: HISTORICAL 

Perspective, Global Presence, and Implications for U.S. Policy (2010), available at 
http://fpc.state.gov/documents/organization/ 1 370 1 5.pdf. 

62. Cf. Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE LAW 
JOURNAL 1 170 (2007) (supporting deference); Derek Jinks & Neal Kumar Katyal, Disregarding 
Foreign Relations Law, 1 16 YALE LAW JOURNAL 1230 (2007) (criticizing Posner & Sunstein). 

63. See Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12, 1949, 6 
U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW]. 

64. See id. arts. 21 (authorizing internment of POWs) & 1 18 (requiring release and repatria- 
tion of POWs upon conclusion of hostilities). 

65. These categories are contained in GPW Article 4(a)( 1-3). Article 4 goes on to list various 
other scenarios in which a person is to be accorded POW status. 

66. See Convention Relative to the Protection of Civilian Persons in Time of War arts. 27, 42, 
43 & 78, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC]. 

67. Commentary to Geneva Convention IV Relative to the Protection of 
Civilian Persons in Time of War 257-58 (Jean S. Pictet ed., Ronald Griffin & C.W. 
Dumbleton trans., 1958). 

68. Cf Ex parte Quirin, 317 U.S. 1 (1942) (categorizing saboteurs associated with the Ger- 
man military as unprivileged belligerents, albeit in the years prior to the 1949 Geneva Conven- 
tions). Note that many other States — but not the United States — are party to the 1977 Protocols 
Additional to the Geneva Conventions of 12 August 1949. See Protocol Additional to the Geneva 
Conventions of 12 August 1949, and Relating to the Protection of Victims of International 
Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions 
of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Con- 
flicts, June 8, 1977, 1 125 U.N.T.S. 609. 

69. See, e.g. , Gabor Rona, A Bull in a China Shop: The War on Terror and International Law in 
the United States, 39 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 135 (2008). 

70. See id. 

71. See, e.g., Ryan Goodman, The Detention of Civilians in Armed Conflict, 103 AMERICAN 
JOURNAL OF INTERNATIONAL LAW 48 (2009). 

72. See id. 

73. This arguably is the best account of the plurality opinion in Hamdi, which referred to 
customary practice during war in a context — Afghanistan in 2004 — that evolved from an inter- 
national to a non-international armed conflict. See 542 U.S. 507. 

74. See Chesney, supra note 2. 

75. See Gabor Rona, Legal Frameworks to Combat Terrorism: An Abundant Inventory of Exist- 
ing Tools, 5 Chicago Journal of International Law 499 (2005). 

76. ICCPR, supra note 29. 

77. Id., art. 9(1). 

78. See id., art. 4( 1 ). Article 4(3) specifies that the derogating State is to "immediately inform 
the other State Parties" of the derogation, as well as the reasons for it. 



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Robert M, Chesney 



79. See, e.g. , Monica Hakimi, International Standards for Detaining Terrorism Suspects: Mov- 
ing Beyond the Armed Conflict-Criminal Divide, 33 YALE JOURNAL OF INTERNATIONAL LAW 369, 
383-89 (2008) (discussing administrative detention as an IHRL-compatible alternative to crimi- 
nal prosecution in circumstances in which LOAC-based detention is not appropriate). 

80. See id. at 392-95 (observing that "pure security-based detention is permitted under the 
ICCPR, so long as it is reasonably necessary to contain the security threat. The problem, again, is 
that the Human Rights Committee has provided almost no guidance on when security-based de- 
tention should be considered reasonably necessary"). Hakimi does note that the European Court 
of Human Rights has interpreted the comparable provision in the European Convention on Hu- 
man Rights as forbidding non-criminal detention intended solely for security purposes. See id. at 
392 (citing, inter alia, Lawless v. Ireland (No. 3), 3 Eur. Ct. H.R. (ser. A),ffl| 13-15, 48 (1961)). 

81. 542 U.S. 507 (2004). The same plurality also concluded that Hamdi, as a citizen with 
Fifth Amendment procedural due process rights, should receive more process in the course of 
determining whether he was a Taliban fighter. See id. at 533-34. The government soon thereafter 
released Hamdi, sending him back to Saudi Arabia after he agreed in writing to relinquish his 
claim to US citizenship. 

82. See id. at 519-20. 

83. See id. at 518. 

84. Id. at 515-16 (citing Ex parte Quirin, 317 U.S. 1, 37-38 (1942); In re Territo, 156 F.2d 
142, 148 (9th Cir. 1946)); id. at 592 (Thomas, J.) (concurring in part and dissenting in part) (cit- 
ing Quirin). 

85. Id. at 522 n.l. 

86. Id. at 521. 

87. See Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002). 

88. Id. at 587-91. 

89. Mat 592-93. 

90. Id. at 593-98. 

91. See Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003). 

92. Id. at 714-18. 

93. Id. at 718. 

94. Mat 719-24. 

95. Rumsfeld v. Padilla, 542 U.S. 426 (2004) . The dissent by Justice Stevens did offer the view 
that Padilla's detention could not be sustained on the merits if the government's justification for 
it rested entirely on the desire to interrogate him. See id. at 465 ("Executive detention of subver- 
sive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be 
justified to prevent persons from launching or becoming missiles of destruction. It may not, how- 
ever, be justified by the naked interest in using unlawful procedures to extract information."). 

96. Padilla v. Hanft, 389 F. Supp. 2d 678, 687 (D.S.C. 2005). 

97. Mat 686. 

98. Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005). 

99. Mat 392. 

100. Mat 389-90. 

101. Mat 391-92. 

102. Mat 392, 393. 

103. Al-Marri initially sought habeas review in Illinois but, like Padilla, eventually was 
obliged to refile in South Carolina. See al-Marri v. Rumsfeld, 274 F. Supp. 2d 1003 (CD. 111. 
2003) (holding that petition had to be filed in district in which al-Marri was held at the time of 
filing), affd, 360 F.3d 707 (7th Cir. 2004). 



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Who May Be Held? Military Detention through the Habeas Lens 

104. See Al-Marri v. Hanft, 378 F. Supp. 2d 673, 676-77 (D.S.C. 2005). 

105. Id. at 679-80. 

106. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). 

107. Id. at 174-75. 

108. Id. at 175. 

109. Id. at 175-76. 

110. Id. at 178-79. 

111. Id. at 1 79 n.8 (asserting that civilians under LOAC categorically are "not subject to mili- 
tary seizure or detention"). 

1 12. Id. at 178-79 (citing GPW, supra note 63, arts. 2, 4, 5 and GC, supra note 66, art. 4). 

113. Id. at 179-82. 

114. Mat 184-85. 

115. Id. at 182. 

1 16. See Al-Marri v. Pucciarelli, 534 F.3d 213, 219 (4th Cir. 2008) (en banc). 

117. See id. at 221-52. 

118. See id at 259-60. 

119. See id at 260-61. 

120. See id 261-62. 

121. Id. at 286 (noting the Charming Betsy canon favoring constructions of statute to comport 
with international law, but concluding that the AUMF is sufficiently clear so as to trump any 
contrary customary law rule). 

122. Id. at 285. But see id. at 288 (emphasizing allegation that al-Marri was a member of al 
Qaeda since 1996, as opposed to emphasizing his conduct in entering the United States to con- 
duct or support an attack). 

123. Id. at287n.5. 

124. Id. at 293. 

125. Id. 

126. Mat 293-303. 

127. Id. at 312. 

128. Mat 313. 

129. Id. at 314. 

130. Id. 

131. Mat 315. 

132. Mat 315-19. 

133. Mat 319. 

134. See id. at 318-19. 

135. Mat 317. 

136. Id. at 316 (quoting Bradley & Goldsmith, supra note 5, at 2114). 

137. Id. at 316-17. 

138. Mat 319-21. 

1 39. Id. at 3 14-19. He made this point clear at the very outset of his opinion, in fact, observing 
that the "advance and democratization of technology proceeds apace" and that, as a result, "we 
live in an age where thousands of human beings can be slaughtered by a single action and where 
large swaths of urban landscapes can be leveled in an instant." Id. at 293. The law must "show 
some recognition of these changing circumstances," must "reflect the actual nature of modern 
warfare." Id. 

1 40. Id. at 3 1 4. See also id. at 3 1 9. Note that Judge Wilkinson elsewhere in the opinion quotes 
expressly from Philip Bobbitt's Shield of Achilles, a central text supporting the proposition of a 



168 



Robert M. Chesney 



dynamic relationship between law and strategic context — not to mention the notion that non- 
State actors engaging in mass-casualty terrorism strongly implicate that relationship. See id. at 
300. Judge Wilkinson plainly was aware of, and in agreement with, this line of argument. 

141. Mat 319. 

142. Id. 

143. Id. at 293. 

144. Mat 322-25. 

145. Id. at 325. 

146. See id. at 323. 

147. Id. 

148. Id. at 324. 

149. See Al-Marri v. Spagone, 129 S.Ct. 1545 (2009). 

150. In 2006, the Supreme Court in Hamdan v. Rumsfeld held that the DTA did not apply to 
habeas petitions that were pending at the time the DTA was enacted, at least insofar as its military 
commission-related provisions were concerned. 548 U.S. 557. Congress responded by enacting 
the Military Commissions Act of 2006, which in effect made the jurisdictional provisions of the 
DTA applicable to pending cases. This set the stage for the Supreme Court in Boumediene to hold 
that the MCA violated the Constitution's Suspension Clause, and that the detainees were entitled 
to habeas review as a constitutional matter. 

151. See Khalid v. Bush, 355 F. Supp. 2d 31 1 (D.D.C. 2005) (holding that detainees had no 
judicially enforceable substantive rights notwithstanding Rasul). 

152. In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (D.D.C. 2005). 

153. See id. at 474-77. 

154. Id. at 475 (citing, inter alia, Scales v. United States, 367 U.S. 203, 224-25 ( 1961 ) (holding 
that criminal punishment of membership in a subversive organization would violate the Fifth 
Amendment unless the statute were construed to require proof that the defendant's membership 
was more than merely nominal and that the defendant specifically intended to further the orga- 
nization's unlawful ends)). 

155. Id. at 476. Redactions in the opinion make it difficult to determine more about her rea- 
soning, but the context strongly suggests that she was particularly concerned that the govern- 
ment might be detaining individuals strictly for their intelligence value. See id. at 477. 

156. Perhaps it was not surprising that Judge Green would make a point of attempting to re- 
strain the government's capacity to detain based on associated ties. During oral argument in the 
case, she had posed a series of hypothetical questions to the government attorney with the 
apparent aim of clarifying the government's conception of the outer boundaries of the ostensi- 
ble authority to detain on the basis that a person provided support to an AUMF-covered group. 
Specifically, she asked whether this detention criterion would be met by a "little old lady in Swit- 
zerland" who was duped into providing funds to a charity group that turned out to be an al 
Qaeda front. One might have expected the attorney to answer no, as this fact pattern at a mini- 
mum does not involve inculpatory mens rea. But it did not turn out that way. The government 
attorney insisted, incredibly, that all were detainable. The moment would go on to dubious im- 
mortality in Judge Green's published opinion, not to mention becoming a standard citation in 
the secondary literature; it would be hard to overestimate its iconic value as a symbol for those 
who feared that the post-9/1 1 assertion of detention authority had become detached from any 
real legal constraints. 

157. See Brief for Petitioner, Boumediene v. Bush, No. 06-1 196, 2007 WL 2441590 (Aug. 24, 
2007). 

158. See id. at 36-37. 



169 



Who May Be Held? Military Detention through the Habeas Lens 

159. See id. at 39. 

160. See id. at 39-41. 

161. See id. 

162. See id. 

163. see nils melzer, international committee of the red cross, interpretive 
Guidance on the Notion of Direct Participation in Hostilities under International 
HUMANITARIAN Law (2009). More to the point, see the collection of materials generated in the 
fractious process of attempting to generate consensus in the process that resulted in the ICRC's 
publication, posted here: http://www.icrc.org/web/eng/siteengO.nsf/html/direct-participation 
-article-020709 (last visited Dec. 8, 2010). 

164. See Brief for Petitioner, supra note 157, at 39-40. 

165. See id. at 41. 

166. See id. (stating that DPH would "certainly cover Osama Bin Laden — and conceivably 
others who have submitted themselves to the direction and control of an organization like al 
Qaeda"). 

167. See id. at 40-41. 

168. 553 U.S. 723. 

169. See WlTTES, CHESNEY & BENHALIM, supra note 12, at 86-105 (summarizing deci- 
sions as to twenty-four individuals whose petitions were resolved as of January 2010). For 
the ten decisions denying relief between January and December 2010, see Obaydullah v. 
Obama (D.D.C. Oct. 19, 2010); al-Bihani v. Obama (D.D.C. Sept. 22, 2010) (involving detainee 
Toffiq Nasser Awad al-Bihani) (available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public 
_doc?2005cv2386-1773); al Kandari v. United States (D.D.C. Sept. 15, 2010) (involving detainee 
Fayiz Mohammed Ahmed al Kandari); Khan v. Obama (D.D.C. Sept. 3, 2010) (involving de- 
tainee Shawali Khan); Sulayman v. Obama (D.D.C. July 20, 2010) (involving detainee Abd Al 
Rahman Abdu Abu Al Ghayth); Khalifh v. Obama (D.D.C. May 28, 2010) (involving detainee 
Omar Mohammed Khalifh); Abdah v. Obama (D.D.C. Apr. 18, 2010) (involving detainee Yasein 
Khasem Mohammed Esmail); Al Warafi v. Obama (D.D.C. Mar. 24, 2010) (involving detainee 
Mukhtar Yahia Naji al Warafi); Al Adahi v. Obama, 692 F. Supp. 2d 85 (D.D.C. Mar. 10, 2010) 
(involving detainee Suleiman Awadh Bin Agil Al-Nadhi); Al Adahi v. Obama (D.D.C. Mar. 10, 
2010) (involving detainee Fahmi Salem Al-Assani). For the six individuals who prevailed on 
their habeas petitions between January and August 22, 2010, see Abdah v. Obama (D.D.C. July 
21, 2010) (involving detainee Adnan Farhan Abd al Latif); Almerfedi v. Obama (D.D.C. July 23, 
2010) (involving detainee Hussain Salem Mohammad Almerfedi); Abdah v. Obama (D.D.C. 
May 26, 2010) (involving detainee Mohamed Mohamed Hassan Odaini); Al Harbi v. Obama, 
May 13, 2010 (D.D.C. May 10, 2010) (involving detainee Ravil Mingazov); Abdah v. Obama 
(D.D.C. Apr. 21, 2010) (involving detainee Uthman Abdul Rahim Muhammed Uthman); Salahi 
v. Obama (D.D.C. Apr. 9, 2010) (involving detainee Mohammedou Ould Salahi). 

170. The four affirmances are Al Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), Awad v. 
Obama (D.C. Cir. June 2, 2010), Barhoumi v. Obama (D.C. Cir. June 1 1, 2010) and al Odah v. 
United States (D.C. Cir. 2010). The reversal occurred in Bensayah v. Obama, 610 F. 3d 718 (D.C. 
Cir. 2010). 

171. See al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. July 13, 2010). 

172. See Salahi v. Obama (D.C. Cir. Nov. 5, 2010). 

173. For an overview, see Lyle Denniston, Primer: The New Detainee Cases, SCOTUSblog 
(Dec. 7, 2010), http://www.scotusblog.com/2010/12/primer-the-new-detainee-cases/. 

174. Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008). 



170 



Robert M. Chesney 



1 75. Not long after the Uighur decision, the D.C. Circuit determined that DTA review should 
be discontinued in favor of the habeas proceedings mandated by Boumediene. See Bismullah v. 
Gates, 551 F.3d 1068 (D.C. Cir. 2009). 

176. For a general overview of the issues broached in the cases, see WlTTES, CHESNEY & 
BENHALIM, supra note 12, passim. 

177. 612 F. Supp. 2d 30, 35 (D.D.C. 2009). 

178. Mat 34. 

179. See id. at 35. Judge Huvelle's opinion does not actually explain the nature of what had 
been widely disclosed to the public. A Washington Post article from February 2009 describes 
Basardh as having cooperated extensively with US authorities, indicating that this had become 
known to other detainees and that Basardh was thought to be in danger from them. See Del 
Quintin Wilber, Detainee-Informer Presents Quandary for Government, WASHINGTON POST, 
Feb. 3, 2009, at Al, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/ 
02/02/AR200902023337_pf.html. 

180. See Awad v. Obama, 646 F. Supp. 2d 20, 24 (D.D.C. 2009) (Robertson, J.); Anam v. 
Obama, No. 04-1194, slip op. at 4 (D.D.C. Jan. 6, 2010) (Hogan, J.). 

181. See Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010) (holding that "[wjhether a detainee 
would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings"). 

182. See Boumediene v. Bush, 583 F. Supp. 2d 133 (D.D.C. 2008). Recall that Judge Leon years 
earlier in Khalid v. Bush had declined to reach this question on the ground that the detainees 
lacked any substantive rights supporting such an inquiry. 

183. Mat 134. 

184. Id. 

185. See id. 

186. See Exec. Order No. 13493, § 1, 74 Fed. Reg. 4901 (Jan. 27, 2009) (Review of Detention 
Policy Options). 

187. See 609 F. Supp. 2d 43 (D.D.C. 2009). 

188. See id. at 55-56. 

189. See id. at 65. 

190. Id. at 62. 

191. See id. at 63. 

192. See id. at 63-64. 

193. Id. at 63. 

194. Id. at 64 n. 15. 

195. See id. at 66-67. 

196. See id. 

197. Id. 

198. Id. 

199. Mat 68. 

200. See id. 

201. Id. 

202. See M at 68-70. 

203. See id. at 68. 

204. Id. 

205. Id. 

206. See id. 



171 



Who May Be Held? Military Detention through the Habeas Lens 

207. See id. This view is consistent with In re Territo, a World War II case in which an Italian- 
American POW unsuccessfully argued that because his job in the Italian Army amounted to 
non-combat manual labor, he should not be held in detention. See 156 F.2d 142 (9th Cir. 1946). 

208. 609 F. Supp. 2d at 69-70. 

209. Id. at 69-70 & n. 17. 

210. Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009). 

211. See id. at 73. 

212. Id. at 75. 

213. See id. 

214. See id. at 75-76. 

215. See id. at 76-77. 

216. See id. at 75-77. 

217. See Anam v. Obama, 653 F. Supp. 2d 62 (D.D.C. 2009) (stating that Hamlily is "not in- 
consistent" with Gherebi, and that any apparent difference "is largely one of form rather than 
substance"). 

218. See Al Odah v. Obama, 648 F. Supp. 2d 1, 6-7 (D.D.C. 2009). 

219. See 677 F. Supp. 2d 1 (D.D.C. 2009). 

220. See id. at 5-6. 

221. See id. at 6-7. 

222. See id. passim. 

223. 590 F.3d 866 (D.C. Cir. 2010). 

224. See id. at 871-72. 

225. See id. at 872-73. 

226. See id. 

227. See id. 

228. See id. at 873 n.2. 

229. See id. 

230. See Al-Bihani v. Obama, 619 F.3d 1, 1 (D.C. Cir. 2010). 

231. See590F.3dat871. 

232. 608 F.3d 1 (D.C. Cir. 2010). 

233. See id. at 10-12. 

234. See id. 

235. 609F.3d416(D.C. Cir. 2010). 

236. See id. at 424-26. 

237. Charlie Savage, Obama Team Is Divided on Anti-Terror Tactics, NEW YORK TIMES, 
Mar. 28, 2010, at Al, available at http://www.nytimes.com/2010/03/29/us/politics/29force.html 
?pagewanted=all. 

238. See id. 

239. See id. 

240. Id. 

241. Id. 

242. Id. 

243. See id. 

244. See id. 

245. Boumediene v. Obama, No. 08-5537 (D.C. Cir. Sept. 22, 2009) (letter from Sharon 
Swingle of the Justice Department's Civil Division to the Clerk of the United States Court of Ap- 
peals for the District of Columbia Circuit), at 1. 

246. Id. at 1-2. 



172 



Robert M. Chesney 



247. Savage, supra note 237. 

248. 610F.3d718(D.C. Cir. 2010). 

249. 611F.3d8(D.C. Cir. 2010). 

250. 2010 WL 2756551 (D.C. Cir. July 13, 2010). 

251. 625F.3d745. 

252. Khan v. Obama (D.D.C. Sept. 3, 2010) (citations omitted). 

253. See Almerfedi v. Obama, No. 05-1645, 2010 WL 2899060 (D.D.C. July 8, 2010). 

254. See Sulayman v. Obama (D.D.C. July 20, 2010). 

255. Cf. United States v. Maldonado, Superseding Criminal Complaint (prosecuting de- 
fendant for receiving military- style training from al Qaeda, though the training was pro- 
vided by al Shabab in Somalia), available at http://www.foxnews.com/projects/pdf/Maldonado 
_Complaint.pdf. 

256. For an introduction to this debate, see Robert Chesney, Has Human Rights Watch 
Changed Its Position on Targeted Killing and the Field of Application oflHL?, LAWFARE (Dec. 9, 
2010), http://www.lawfareblog.com/2010/12/has-human-rights-watch-changed-its-position 
-on-targeted-killing-and-the-scope-of-application-of-ihl/. The targeted killing suit recently was 
dismissed by Judge Bates on standing and political question grounds in Al-Aulaqi v. Obama 
(D.D.C. Dec. 8, 2010). 

257. See Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009), revd 605 F.3d 84 (D.C. Cir. 
2010). 

258. 605 F.3d at 97-98. 

259. Mat 98-99. 

260. Mat 99. 

261. We may yet also see litigation involving the scope of detention authority involving US 
citizens allegedly held by other States under US direction or control — so-called "proxy deten- 
tion." See Press Release, ACLU of Southern California, ACLU/SC Suit Seeks Information on U.S. 
'Proxy Detention' of American Citizen in the U.A.E. (Aug. 18, 2010), available at https:// 
www.aclu-sc.org/releases/view/103037. 

262. The American Civil Liberties Union and the Center for Constitutional Rights recently 
made waves by filing a suit challenging the government's claim of authority to use lethal force 
against Anwar al-Aulaqi, an American citizen alleged to be a member of al Qaeda in the Arabian 
Peninsula. See supra note 5. That suit is remarkable precisely because such litigation is exceed- 
ingly rare. No earlier suit seeks to preclude the use of lethal military force against a particular in- 
dividual. Prior attempts to restrain the government from exercising military force at a more 
general level, such as efforts to stop the use of military force in Vietnam, Cambodia and Laos, 
largely foundered in the face of justiciability objections. And at least for the time being, so too has 
the al-Aulaqi litigation. See Al-Aulaqi v. Obama (D.D.C. Dec. 8, 2010) (dismissing complaint on 
standing and political question grounds). 

263. Human Rights First, Habeas Works: Federal Courts' Proven Capacity to 
Handle Guantanamo Cases: A Report from retired Federal Judges 13-16 (2010) [here- 
inafter Report from Retired Federal Judges] , available at http://www.humanrightsfirst.org/ 
wp-content/uploads/pdf/Habeas-Works-final-web.pdf. In the interest of full disclosure, I note 
that Habeas Works criticizes a report I coauthored with Benjamin Wittes and Rabea Benhalim in 
which we contend that the judges in the habeas cases have been left by Congress and the Presi- 
dent to craft most of the substantive and procedural law governing the habeas proceedings. See 
id. at 27 (criticizing WITTES, CHESNEY & BENHALIM, supra note 12). 

264. Mat 13-16. 

265. Id. 



173 



Who May Be Held? Military Detention through the Habeas Lens 

266. Id. at 16. 

267. Id. 

268. See BENJAMIN WlTTES, DETENTION AND DENIAL (forthcoming 201 1). 

269. REPORT FROM RETIRED FEDERAL JUDGES, supra note 263, at 28. 

270. Cf. Scales v. United States, 367 U.S. 203, 209 (1961) (permitting a criminal prosecution 
on membership grounds where a person is an active member of a group who intends to facilitate 
the group's unlawful ends). 



174 



PARTY 



THE CHANGING CHARACTER OF THE 

PARTICIPANTS IN WAR: CIVILIANIZATION OF 

WARFIGHTING AND THE CONCEPT OF 

"DIRECT PARTICIPATION IN HOSTILITIES" 



VII 



The Changing Character of the Participants 

in War: Civilianization of 

Warfighting and the Concept of "Direct 

Participation in Hostilities" 



Charles Garraway* 



The fact that the nature of conflict has changed is not in dispute. The question 
that is being asked is how this has affected the traditional law of armed con- 
flict, particularly as it has developed in the modern era. Modern codification of the 
law began almost simultaneously on opposite sides of the Atlantic. In the United 
States, during the Civil War, Dr. Lieber drafted the Lieber Code, 1 designed for the 
Unionist forces. Meanwhile, in Europe, Henry Dunant, following his experience at 
the Battle of Solferino, was working to fulfill his dream of providing succor to the 
victims of armed conflict. The first emanation of this was the Geneva Convention 
of 1 864. 2 

What was of particular interest in both these initiatives is the emphasis on those 
who took a direct part in hostilities. In both Europe and the United States, conflict 
was restricted to defined geographical areas. The limits on the range of weaponry 
meant that this could be so. Thus there was, for the most part, a clear distinction 



* Associate Fellow at Chatham House on the International Security Programme and a Fellow of 
the Human Rights Centre, University of Essex. 



The Changing Character of the Participants in War 

between the "battlefield" and other areas, and between those who took a direct part 
in hostilities and those who did not. Battles were largely set pieces between armed 
forces and did not involve the civilian population. At the first battle of Bull Run in 
July 1861, civilian sightseers came down from Washington in order to take vantage 
points on the surrounding hills. They thought they were entirely safe but even 
then, they learned a sharp lesson as, to their total surprise, the Union forces were 
routed and the civilians found themselves caught up in the ignominious retreat. 

As weaponry increased in power, the battlefield turned into the battlespace. The 
growing range of artillery and of airpower meant that no longer could war be lim- 
ited to armed forces. Civilians were becoming involved, at first as victims of the 
new weaponry as occurred in the area bombings of the Second World War, and 
then as participants. As war became all-encompassing and the difference between 
front lines and rear areas began to evaporate, total war involved the mobilization of 
the whole population. Some were in the armed forces; others went into other occu- 
pations supporting the war effort, e.g., working in ammunition factories or trans- 
port units. 

One of the key principles of the law of armed conflict has always been that of 
distinction; a clear separation is to be kept between those who take a direct part in 
hostilities and those who don't. Those who don't are protected from direct attack 
and those engaging in conflict are required to take all feasible precautions in the 
choice of means and methods of attack with a view to avoiding, and in any event 
to minimizing, incidental loss of civilian life, injury to civilians and destruction or 
damage to civilian objects. On the other hand, the growing involvement of civil- 
ians in activities relating to conflict in itself caused difficulties. Where is the divid- 
ing line to be drawn? The dilemma was met in 1977 by a provision that civilians 
enjoy protection from attack "unless and for such time as they take a direct part 
in hostilities." 3 

Until comparatively recent times, the distinction between direct and indirect 
participation in hostilities was comparatively uncontroversial. It was agreed that 
working in industries supporting the war effort, such as ammunition factories, did 
not amount to "direct participation," though, as the factory itself would remain a 
military objective, this might not be too much of a protection. On the other hand, 
those who committed "acts which by their nature and purpose are intended to 
cause actual harm to the personnel and equipment of the armed forces" 4 were seen 
as taking a direct part in hostilities and thus losing their protection. However, as 
the nature of warfare has changed, so have the participants. Now, in the 
battlespace, there are many different actors. The regular armed forces sometimes 
seem to be almost in a minority. The complexity of weaponry has led to a growing 
number of civilian contractors hired to maintain, repair and in some cases even 

178 



Charles Garraway 



operate equipment. Unmanned aerial combat vehicles can be operated by 
personnel situated thousands of miles away from the conflict area. The cost of 
maintaining military personnel has also led to the contracting out of many support 
functions, particularly logistics. The merging of front lines and rear areas has 
meant that rear area security, often in the past carried out by civilian personnel, 
has now developed into a major industry so that private military and security 
companies bid for contracts all over the world in areas where they will be operat- 
ing in areas of conflict. 

Even the nature of fighting forces has changed. While in international armed con- 
flict regular armed forces continue to predominate, there are an increasing number 
of armed groups and even individuals who involve themselves in the hostilities. In 
non-international armed conflict, one party is by definition "irregular." How does 
the principle of distinction apply to all these new actors in the battlespace? 

Linked to this is the growing overlap between the law of armed conflict and 
human rights law. Some continue to argue that these two separate parts of public 
international law are indeed separate and there is no overlap. However, for most, 
particularly States that are members of the Council of Europe and thus subject to 
the European Convention of Human Rights, 5 that is no longer even an arguable 
position. How then do the protective provisions of human rights law, which do not 
contain the same distinctions between civilians and direct participation, being 
technically applicable to all, apply in situations of armed conflict? 

To complicate matters still further, the lines between conflict and law enforce- 
ment have themselves become blurred. Terrorism, which in the past was looked 
upon as a domestic problem to be dealt with under the law enforcement paradigm, 
has become ideological "warfare" extending across international boundaries. Ter- 
rorists have acquired weaponry and equipment, the power of which would be the 
envy of many States. 

All these factors have led to increasing strain on the laws of war as we know 
them. Are the restraints of the Geneva Conventions "quaint" and "obsolete" in this 
"new paradigm"? 6 Or are we merely seeing a development of previous types of war- 
fare which do not affect the underlying principles? 

The International Committee of the Red Cross (ICRC) realized at an early stage 
after 9/11 that the principle of distinction might be under threat and that it was neces- 
sary to seek to establish guidelines to assist governments to differentiate between those 
who are protected from direct attack and those who are not. At the center of this issue 
is the phrase "taking a direct part in hostilities." Who qualifies as a "civilian"? What is 
the meaning of "direct part"? What are the consequences of losing protection? 

In conjunction with the TMC Asser Institute, the ICRC established an expert 
process in 2003 to see if answers could be found to these questions. The experts 

179 



The Changing Character of the Participants in War 

held five meetings between 2003 and 2008 but, although there was much agree- 
ment, that agreement did not extend to many of the key issues. As usual, it is the 
hard cases where the differences came to the fore. 7 

At the end of the process, the ICRC decided to issue its own Interpretive Guid- 
ance on the Notion of Direct Participation in Hostilities under International 
Humanitarian Law. 8 The ICRC made it plain that the Interpretive Guidance "is 
widely informed by the discussions held during these expert meetings but does 
not necessarily reflect a unanimous view or majority opinion of the experts." 9 
Unanimity would have been difficult as, on some of the key issues, the division 
was wide and the views strongly held on all sides. Indeed, a number of the experts, 
particularly those who held government positions (though all experts took part in 
their private capacity), felt it necessary to withdraw from the process as the nature 
of the Interpretive Guidance became clear. As a result, the Interpretive Guidance has 
been highly controversial and subject to strong criticism. 10 At the same time, Dr. Nils 
Melzer, the ICRC's author of the Interpretive Guidance, and others have defended 
the text. 11 

But what is the debate about? The first issue is on the definition of "civilian," 
particularly in non-international armed conflict. The Interpretive Guidance holds 
that organized armed groups of a party to the conflict do not qualify as civilians. 
However, in non-international armed conflicts, because of the difficulty in defin- 
ing members of such groups and the risk that "membership" might then lead to 
persons who were members of political or social wings of such groups losing pro- 
tection, "members" are limited only to "individuals whose continuous function it 
is to take a direct part in hostilities {'continuous combat function)." 12 To some, this 
was going too far in that it created a new group of individuals who were not "com- 
batants," since there is no combatant status in non-international armed conflict, 
but who were no longer classed as "civilians." To others, it did not go far enough, in 
that "continuous combat function" did not properly equate to the regular armed 
forces opposed to the group. Those in support functions such as the logistician, 
cook or even lawyer, who might be considered as "combatant" members if in the 
regular armed forces, would normally not qualify as legitimate targets under the 
"continuous combat function" test. 

In relation to the constitutive elements of direct participation in hostilities, the 
Interpretive Guidance suggested three cumulative conditions. The relevant section 
states: 13 

In order to qualify as direct participation in hostilities, a specific act must meet the fol- 
lowing cumulative criteria: 



180 



Charles Garraway 



1 . The act must be likely to adversely affect the military operations or military capac- 
ity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruc- 
tion on persons or objects protected against direct attack (threshold of harm), and 

2. there must be a direct causal link between the act and the harm likely to result 
either from that act, or from a coordinated military operation of which that act con- 
stitutes an integral part (direct causation), and 

3. the act must be specifically designed to directly cause the required threshold of 
harm in support of a party to the conflict and to the detriment of another (belligerent 
nexus). 

These three constituent elements, threshold of harm, direct causation and belliger- 
ent nexus, may be thought to be helpful and seem to have received general ap- 
proval. While there may be differences on the edges such as whether voluntary 
human shields come within "direct causation," 14 the concepts themselves seem to 
be well grounded both in existing law and in practice. 

Perhaps the most controversial part of the Interpretive Guidance has proved to 
be the third part, namely, the consequences of the loss of protection. It states in 
Recommendation IX that 

[i]n addition to the restraints imposed by international humanitarian law on specific 
means and methods of warfare, and without prejudice to further restrictions that may 
arise under other applicable branches of international law, the kind and degree offeree 
which is permissible against persons not entitled to protection against direct attack 
must not exceed what is actually necessary to accomplish a legitimate military purpose 
in the prevailing circumstances. 15 

This has been interpreted by some as introducing a rule of graduated use of force 
whereby lethal force may only be used, even against combatants, only if it is "actu- 
ally necessary." The Guidance includes a quote from Jean Pictet that 

[i]f we can put a soldier out of action by capturing him, we should not wound him; if 
we can obtain the same result by wounding him, we must not kill him. If there are two 
means to achieve the same military advantage, we must choose the one which causes 
the lesser evil. 16 

A number of experts in the process, mainly from government backgrounds, saw 
this as the introduction of a human rights standard into international humanitar- 
ian law and vigorously opposed it. They argued that no such rule existed in law in 
that the traditional interpretation was that a combatant who had the right to 



181 



The Changing Character of the Participants in War 

conduct hostilities in accordance with the law of armed conflict also could be tar- 
geted at any time and in any place. It was accepted that on many occasions, where it 
was possible to do so, capture might be a preferable option but it was not a rule of 
law. There were also concerns over the use of the word "actually." Did this intro- 
duce an ex post facto element into the decision-making process? If the "armed" per- 
son facing the soldier turned out to have no bullets in his weapon, was it "actually 
necessary" to kill him? 

The debate has been bitter and the issues have sometimes become confused. The 
New York University Journal of International Law and Politics published a Forum 
consisting of four articles by critics from Canada, the United States and the United 
Kingdom of the Interpretive Guidance, all of whom had been involved in the expert 
process. 17 The same volume published a lengthy riposte to the critics by Dr. Melzer. 18 
What seems clear is that the Interpretive Guidance has launched an extensive de- 
bate, one which will be continued in this volume of the "Blue Book" series. 

However, while direct participation may seem to be the key to the "civiliani- 
zation" of warfare, there are a number of other issues which should not be forgot- 
ten. One is the growing use of private companies to fulfill what were previously 
considered to be military tasks. Increasingly, as mentioned earlier, Western forces 
are outsourcing specific functions to such companies. Logistics are now heavily re- 
liant on civilian contractors, whether it is the cook who provides the food in the 
mess tent or the weapons technician who provides an in-theater repair capability 
for a complex weapons system. Transportation is now heavily civilianized and this 
became a factor in the direct participation debate. However, more problematic is 
the growing number of companies providing security in complex emergencies. 
These can range from static guards for civilian businesses to bodyguards for senior 
government officials. 

How far can or should such companies become involved in military activities? 
What are the limits on their participation and to what extent does the contextual 
situation change the status of the personnel? Is training of military personnel in a 
peacetime environment acceptable but not in a country racked by conflict? Where 
are the dividing lines? 

The regulation of private military and security companies has been a matter of 
concern to governments and indeed to responsible companies within the industry. 
An initiative by the Swiss government in cooperation with the ICRC led to the 
signing on September 17, 2009 of the Montreux Document on Pertinent Interna- 
tional Legal Obligations and Good Practices for States Related to Operations of Pri- 
vate Military and Security Companies during Armed Conflict. 19 This document, 
initially signed by seventeen States, led to efforts to develop an international code of 
conduct that would set forth norms and standards for the provision of private 

182 



Charles Garraway 



security services with some form of accountability mechanism. These efforts, which 
included an active collaboration of members of the private security industry with the 
Swiss Department of Foreign Affairs, the Geneva Centre for the Democratic Control 
of Armed Forces and the Geneva Academy of International Humanitarian Law and 
Human Rights, resulted in the International Code of Conduct for Private Security 
Service Providers in November 20 10 20 signed by fifty-eight companies. 

Underlying all of these discussions is the even more fundamental issue of the re- 
lationship between the law of armed conflict and human rights law. As the bound- 
aries between law enforcement and armed conflict become increasingly blurred, it 
becomes harder for the soldier to know which is the predominant paradigm. 

Traditionally, the law of armed conflict and human rights law have been seen as 
separate and distinct. One was the law of war and the other the law of peace. Never 
the twain should meet. However, that separation no longer can be upheld. Quite 
apart from the problems of delineation across the spectrum of violence, the two sys- 
tems of law have also deliberately sought to expand their own spheres of influence. 

At the end of the Second World War, in keeping with the traditional divide, the 
law of armed conflict belonged almost exclusively to international armed con- 
flict — war between States. In 1949, the first tentative steps were made to extend 
some provisions to non- international armed conflicts through the medium of 
Common Article 3. 21 At the same time, the United Nations in its attempts "to save 
succeeding generations from the scourge of war" sought to "reaffirm faith in fun- 
damental human rights, in the dignity and worth of the human person, in the equal 
rights of men and women and of nations large and small." 22 In December 1948, the 
General Assembly of the United Nations adopted the Universal Declaration of 
Human Rights. 23 Although "universal," no direct mention is made in the Declara- 
tion of time of war. It is only in later documents such as the European Convention 
for the Protection of Human Rights of November 1950 (entering into force in Sep- 
tember 1953) 24 and the International Covenant on Civil and Political Rights of 
1966 25 that there is reference to wars and states of emergency. 

Common Article 3 is important because it extended only small parts of the law 
of armed conflict into non-international armed conflict. These parts dealt with the 
protection of individuals ("Geneva law") and not the conduct of hostilities 
("Hague law"). However, that has now changed. In the Diplomatic Conference 
that led to the adoption of the two 1977 Additional Protocols to the 1949 Geneva 
Conventions, detailed proposals were put forward to extend the "Hague-type" pro- 
visions introduced in Additional Protocol I, 26 and thus applicable only to interna- 
tional armed conflict, into Additional Protocol II, 27 dealing with non-international 
armed conflict. For the most part, these attempts were unsuccessful and Additional 
Protocol II contains primarily "Geneva-type" law. However, the tide was already 

183 



The Changing Character of the Participants in War 

turning and today there is an increasing trend for law of armed conflict treaties to 
apply across the board to all types of conflict. The ICRC's study Customary Interna- 
tional Humanitarian Law, 28 published in 2005, supported this trend, coming to the 
conclusion that almost all "Hague-type" law was now applicable to all conflicts, 
both international and non-international. 

At the same time, the International Court of Justice 29 and a number of human 
rights bodies, 30 in particular the European Court of Human Rights, 31 were con- 
firming that human rights law applied at all times, including in times of conflict 
and public emergency, subject only to derogation and to the relationship between 
human rights law and the law of armed conflict as the lex specialis. Unfortunately, 
while the principle seemed to be established, the devil, as always, is in the detail and 
the nature of the relationship between human rights law and the law of armed 
conflict has not been adequately defined. 

The extension of "Hague-type" law into non-international armed conflict itself 
causes difficulties. Whereas "Geneva law" is primarily concerned with the interests 
of victims and thus tends to give primacy to the interests of humanity over military 
necessity, "Hague law" is more of a balance. It is accepted in the law of armed con- 
flict that in conflict there will be damage to civilian property and civilian lives will 
be lost. However, the principle of proportionality seeks to keep this damage and 
loss of life within reasonable bounds, taking into account the nature of conflict. 

Human rights law sits reasonably comfortably alongside "Geneva law" but less 
comfortably with "Hague law." The concept of balance is more limited in human 
rights law, particularly in those areas that are of most importance in conflict. Thus 
the rules for the use of force in the law of armed conflict are difficult to reconcile 
with the right to life under human rights law. 

While conflict was a distinct activity conducted, for the most part, away from 
civilian locations, these divergences were reasonably unimportant. However, in 
"wars amongst the people," they become critical and need to be resolved. 32 In- 
deed, the reconciliation of human rights law and the law of armed conflict in a 
manner that provides a comparatively seamless and coherent set of rules across 
the spectrum of violence may be the challenge of the next generation of interna- 
tional lawyers. 

The civilianization of warfighting poses many challenges to the accepted legal 
framework. Some of the work being done and the concepts being explored are ex- 
amined in these following contributions by the members of the panel I chaired. 
Much, however, remains to be done. Unless the problems and challenges are rec- 
ognized and faced, they will never be met and resolved. The characteristics of con- 
flict may be changing but that does not mean that the need for regulation is 
changing too. The laws of war have stood the test of time down the centuries, 

184 



Charles Garraway 



adapting as required to meet new situations. The essential balance between hu- 
manity and military necessity has underpinned the regulation of conflict through 
those centuries, adjusting to meet each new challenge, each "new paradigm." Our 
task is to ensure that that balance is maintained in the world as we face it in the first 
quarter of the twenty-first century. 

Notes 

1. U.S. Department of War, Instructions for the Government of Armies of the United 
States in the Field, General Orders No. 100, Apr. 24, 1863, reprinted in THE LAWS OF ARMED 
CONFLICTS 3 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004). 

2. Convention for the Amelioration of the Condition of the Wounded in Armies in the 
Field, Aug. 22, 1864, 22 Stat. 940, T.S. No. 377, reprinted in THE LAWS OF ARMED CONFLICTS, 
supra note 1, at 365. 

3. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts art. 51(3), June 8, 1977, 1 125 U.N.T.S. 3, 
reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1, at 71 1, 736 [hereinafter Additional 
Protocol I]. 

4. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA 
CONVENTIONS OF 12 AUGUST 1949, ^ 944 (Yves Sandoz, Christophe Swinarski & Bruno Zim- 
mermann eds., 1987). 

5. European Convention for the Protection of Human Rights and Fundamental Freedoms 
art. 15, Nov. 4, 1950, 213 U.N.T.S. 222, reprinted in BASIC DOCUMENTS ON HUMAN RIGHTS 610, 
615 (Ian Brownlie & Guy S. Goodwin-Gill eds., 5th ed. 2006). 

6. See Memorandum to the President from Alberto R Gonzales, Decision re Application of 
the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban (Jan. 
25, 2002), reprinted in THE TORTURE PAPERS - THE ROAD TO ABU GHRAIB 118 (Karen 
Greenberg 8c Joshua Dratel eds., 2005), available at http://www.slate.com/features/whatistorture/ 
LegalMemos.html. 

7. The full record of the expert proceedings can be found on the ICRC website, http:// 
www.icrc.org/web/eng/siteeng0.nsf/htmlall/direct-participation-article-020709?opendocument. 

8. International Committee of the Red Cross, Interpretive Guidance on the 
Notion of Direct Participation in Hostilities under international Humanitarian 
LAW (2009), available at http://www.icrc.org/eng/assets/files/other/icrc_002_0990.pdf [herein- 
after Interpretive Guidance] . 

9. Mat 9. 

10. See, e.g., Michael Schmitt, The Interpretive Guidance on the Notion of Direct Participation 
in Hostilities: A Critical Analysis, 1 HARVARD NATIONAL SECURITY JOURNAL 5 (2010). 

11. See Nils Melzer, The ICRC's Clarification Process on the Notion of Direct Participation in 
Hostilities under International Humanitarian Law, http://www.oas.org/dil/esp/XXXVI_curso 
_The_ICRC_Clarification_Process_Nils_Melzer.pdf (last visited Nov. 30, 2010); Dieter Fleck, 
Direct Participation in Hostilities by Nonstate Actors and the Challenge of Compliance with Inter- 
national Humanitarian Law, PUBLIC DIPLOMACY MAGAZINE, Summer 2010, at 40, available at 
http://publicdiplomacymagazine.com/direct-participation-in-hostilities-by-nonstate-actors-and 
-the-challenge-of-compliance-with-international-humanitarian-law/; Dapo Akande, Clearing 



185 



The Changing Character of the Participants in War 

the Fog of War? The ICRC's Interpretive Guidance on Direct Participation in Hostilities, 59 
International and Comparative Law Quarterly 180 (2010). 

12. Interpretive Guidance, supra note 8, at 27. 

13. Mat 46. 

14. Id. at 56-57. Contra Michael Schmitt, Deconstructing the Direct Participation in Hostili- 
ties: The Constitutive Elements, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW 
AND POLITICS 697, 732-34 (2010). 

15. Interpretive Guidance, supra note 8, at 77. 

16. Mat 82. 

1 7. See the series of articles in Forum, The ICRC Interpretive Guidance on the Notion of Direct 
Participation in Hostilities under International Humanitarian Law, 42 NEW YORK UNIVERSITY 
JOURNAL OF INTERNATIONAL LAW AND POLITICS 637 (2010). 

18. Mat 831. 

19. For an explanation of the background to the document and the document itself, see the 
Swiss Federal Department of Foreign Affairs website at http://www.eda.admin.ch/etc/medialib/ 
downloads/edazen/topics/intla/humlaw.Par.0078.File.tmp/Montreux%20Broschuere.pdf. 

20. Available at http://www.news.admin.ch/NSBSubscriber/message/attachments/21 143.pdf. 

21. Common Article 3 to the four 1949 Geneva Conventions applies to all cases "of armed 
conflict not of an international character occurring in the territory of one of the High Contract- 
ing Parties." See, e.g., Convention for the Amelioration of the Condition of the Wounded and 
Sick in Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31, reprinted in 
The Laws of Armed Conflict, supra note l, at 459, 461. 

22. U.N. Charter pmbl. 

23. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st 
plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948), reprinted in BASIC DOCUMENTS ON HUMAN 
RIGHTS, supra note 5, at 23. 

24. Supra note 5. 

25. International Covenant on Civil and Political Rights arts. 4, 8, G.A. Res. 2200A (XXI), 
U.N. Doc. A/6316 (Dec. 16, 1966), 999 U.N.T.S. 171, reprinted in BASIC DOCUMENTS ON 
HUMAN RIGHTS, supra note 5, at 358, 359, 361. 

26. Additional Protocol I, supra note 3. 

27. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, 
reprinted in THE LAWS OF ARMED CONFLICT, supra note 1, at 775. 

28. Customary International Humanitarian Law (2 volumes) (Jean-Marie Henckaerts 
8c Louise Doswald-Beck eds., 2005). 

29. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 
H 25 (July 8); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Ter- 
ritory, Advisory Opinion, 2004 I.C.J. 136, ffl| 106-13 (July 9); Armed Activities on the Territory 
of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 1 16, U 216 (Dec. 19). 

30. U.N. Human Rights Committee, General Comment No. 29, States of Emergency (Arti- 
cle 4), U.N. Doc. CCPR/C/21/Rev.l/Add.ll (Aug. 31, 2001). 

31. There have been a number of cases arising out of the situation in eastern Turkey, 
Chechnya and northern Cyprus. There are also cases waiting hearings arising from the Georgia/ 
Russia conflict of August 2008. 

32. See RUPERT SMITH, THE UTILITY OF FORCE: THE ART OF WAR IN THE MODERN WORLD 
(2005). 



186 



VIII 



Direct Participation in Hostilities and the 

Interoperability of the Law of Armed Conflict 

and Human Rights Law 



Fran^oise J. Hampson* 
I. Introduction 

There is an ongoing debate as to how to make the law of armed conflict 
(LOAC) and human rights law (HRsL) interoperable. The International 
Committee of the Red Cross's (ICRC's) Interpretive Guidance on the Notion of Di- 
rect Participation in Hostilities under International Humanitarian Law has compli- 
cated that process. 1 This article seeks to explain why there is a problem and to 
propose possible solutions. It only deals with the specific issues of targeting and 
opening fire. It does not address the issue of detention. 2 Before embarking on that 
examination, it is first necessary to identify a range of assumptions and assertions 
on which the analysis will be based. Certain distinctions within LOAC will then 
be explored, because of their impact on the rules on targeting. The article will 
then examine how the decision to open fire is analyzed under HRsL. Options 
available to make LOAC and HRsL interoperable will be considered before finally 
suggesting a solution. 



* Department of Law and Human Rights Centre, University of Essex, United Kingdom. 



DPH and the Interoperability ofLOAC and Human Rights Law 

IT. Assumptions and Assertions 

This section identifies certain issues relevant to the discussion that, for reasons of 
length, it will not be possible to discuss in any detail. 

The Applicability ofLOAC Does Not Have the Effect of Making HRsL 
Inapplicable 3 

There is overwhelming evidence to support this general proposition, including two 
advisory opinions and one judgment in a contentious case of the International 
Court of Justice (ICJ). 4 The ICJ has suggested that, when both bodies of rules are 
applicable, LOAC is the lex specialist It is unclear as yet both precisely what this 
means and also how it is to be operationalized. 6 While the United States and Israel 
have argued that the applicability of LOAC displaces that of HRsL, it appears un- 
likely that they can claim to be "persistent objectors." 7 

One of the most important implications of the co-applicability of LOAC and 
HRsL is that bodies charged with monitoring compliance with HRsL would appear 
to have the competence to assess whether a killing was a breach of HRsL, even if 
they have to interpret HRsL in the light ofLOAC. The bodies in question include 
not only monitoring mechanisms that owe their authority ultimately to the United 
Nations Charter, such as the UN Special Procedures mechanisms, 8 but also moni- 
toring bodies established under treaties. Those likely to have the most impact in 
practice are treaty bodies, which can receive individual complaints and deliver 
binding legal judgments — in other words, the three regional human rights courts. 9 
This does not mean that the opinions of other bodies, notably the Human Rights 
Committee under the International Covenant on Civil and Political Rights, are not 
important. 10 The jurisdiction of the regional human rights courts may be limited 
on other grounds, most notably the uncertain scope of the extraterritorial applica- 
bility of HRsL. 

The Scope of the Extraterritorial Applicability of HRsL 

Unlike the first issue, this question is far from settled. 11 It appears to be clear that 
States have to apply their human rights obligations in territory that they occupy, at 
least in the case of stable or settled occupation. 12 It is also well established that 
States have to apply their human rights obligations to persons in their physical 
control, such as detainees. 13 What is not clear is the extent to which a State's hu- 
man rights obligations apply to acts within the control of State agents where the 
harm to the victim is foreseeable but the victim is not within their physical control. 
Such a situation arises when the armed forces of State A in State B deliberately fire 
at X from a distance of eight hundred yards or intentionally strike a building in 

188 



Frangoise J. Hampson 



State B, knowing that there are a number of civilians inside, even if they do not 
know their names. 14 

This issue, unlike the previous question, arises purely as a matter of HRsL; it 
has nothing to do with the co-applicability of LOAC. It only arises in the case of 
those human rights treaty bodies whose competence is limited to alleged victims 
"within the jurisdiction" of the respondent State. 15 The UN Special Procedures 
and the Inter- American Commission of Human Rights, in exercising its functions 
under the Organization of American States Charter, are not subject to such a limi- 
tation. 16 To date, this restriction on the scope of jurisdiction has been most signifi- 
cant in the case of the European Court of Human Rights (ECtHRs) and, to a lesser 
extent, the UN Human Rights Committee. Important cases, arising out of the 
conflict in, and occupation of, Iraq in and after 2003 and the conflict between 
Georgia and Russia in 2008, are currently pending before the former body. It may 
clarify that Court's currently incoherent caselaw. 17 It requires a rational path to be 
found between two equally objectionable extremes. It seems self-evident that a 
State should not be allowed to do extraterritorially what it is prohibited from do- 
ing within its own borders. 

It is equally obvious that a State should not be found responsible for acts, omis- 
sions and situations over which it exercises no control. An important distinction in 
HRsL, that between positive and negative obligations, might be relevant in this 
context. By "negative obligations" is meant the obligation to respect a right, usually 
by not doing something prohibited. The State also has an obligation to protect in- 
dividuals from the risk of a right being violated. This requires the State to take mea- 
sures to protect the individual from potential harm at the hands of State agents or 
third parties. It represents a positive obligation to protect. The nature of certain 
rights means that the positive obligation can only be fulfilled by the State exercising 
the type of control it is expected to have in national territory. The delivery of the 
right to education requires machinery for setting up schools, training teachers, 
paying teachers and providing various materials. It is self-evident that State A, en- 
gaged in a military operation in State B, cannot deliver such a right to the popula- 
tion. The situation would be different if the armed forces were in effective control 
of part of the State's territory over a significant period of time and failed to address 
in anyway the educational needs of the population, or if State A's forces, present in 
State B with the consent of the State, failed to protect schools from foreseeable at- 
tack. This might suggest that the only relevant test is one of situational control. 
While that is certainly relevant, it is inadequate to address certain situations when 
the State freely chooses to undertake an act that it could not do lawfully in its own 
territory. Take the example of State A, which is engaged in a military operation in 
State B, but which is not in control of the territory in which it is fighting. Its armed 



189 



DPH and the Interoperability ofLOAC and Human Rights Law 

forces deliberately fire on X at a distance of eight hundred yards. They are not in 
physical control of X. They are, however, in control of the acts of the armed forces 
whose behavior is decisive in determining whether or not X is killed. The issue con- 
cerns a negative obligation, the obligation not to use potentially lethal force except 
in defined circumstances. The State does not require elaborate machinery in order 
to deliver the right; its agents simply have to refrain from opening fire. 

It should be remembered that, while much of the discussion of the issue con- 
cerns the control exercised by the State acting extraterritorially, the treaty language 
does not require the alleged perpetrator to be within the control of the State. It re- 
quires that the victim should be within the jurisdiction of the respondent State. It 
should also be remembered that the question here is not whether the situation 
should be analyzed in terms of HRsL or LOAC but whether HRsL is applicable at 
all. If it is not, certain human rights bodies do not have jurisdiction. If they do have 
jurisdiction, a second and separate question arises. The body then has to determine 
whether its analysis of HRsL has to be undertaken in the light ofLOAC. That might 
mean that there was a violation of HRsL only if there were a violation ofLOAC. In 
effect, but not in form, the human rights body would then be enforcing LOAC. It 
could only do so, however, if it had jurisdiction. 

This article will not discuss the issue further but it must be borne in mind 
throughout the subsequent discussion. It has significant implications for the extent 
of the problem of co-applicability. 

The Geographical Scope of the Applicability ofLOAC 

Historically, there seems to have been an assumption that LOAC applied through- 
out the territory of the State involved in the conflict or in whose territory the con- 
flict was occurring. 18 In the case of international armed conflicts (IACs), 
geographical limitations on the scope of applicability ofLOAC may be achieved in 
other ways. For example, during the Gulf War 1990-91, the coalition forces appear 
not to have targeted roads and bridges in Iraqi Kurdistan. They were not used to 
contribute to the Iraqi military effort and their destruction or neutralization would 
therefore not have delivered a definite military advantage. 19 In IACs, it may be 
preferable to assume that LOAC applies throughout the relevant territories and to 
use the definition of a military objective to limit the geographical scope of the fight- 
ing on a factual basis. 

The situation in the case of non-international armed conflicts (NIACs) is signif- 
icantly different, whether the State is a party to the conflict or not. 20 Although it is 
important that forces needing the protection of LOAC should get it, it is equally 
important that a LOAC paradigm should only be used when it is necessary. Emer- 
gency measures that are genuinely required are usually accepted, however 

190 



Fran$oise J. Hampson 



reluctantly, by the majority of the population. That population is, however, likely 
to be alienated by reliance on emergency measures not perceived to be necessary. 

On that basis, NIAC rules should apply to those parts of the territory in which 
righting is occurring and to conflict-related activities in other parts of the territory. 
Imagine, for example, that there is a conflict in one province of State A. It intro- 
duces internment or administrative detention as an emergency measure. That 
should not apply to the detention of individuals in other provinces, unless an indi- 
vidual is detained there on account of activities in the province where the conflict is 
occurring. 

The caselaw of the International Criminal Tribunal for the former Yugoslavia 
(ICTY) suggests support for both the general applicability of LOAC throughout 
the territory and also a more restricted geographical scope for the applicability of 
NIAC rules. 21 A study of State practice, at least with regard to NIACs within the ter- 
ritory of the State, might suggest a more restrictive approach. As a matter of im- 
pression, when a conflict is only occurring in part of its territory, a State often only 
declares a state of emergency in those parts of national territory affected by the con- 
flict. 22 That may be principally the product of domestic, notably constitutional- 
law, concerns or of HRsL, but that would not exclude its possible relevance to the 
applicability of LOAC. 23 

The process of establishing customary law in NIACs is far more complicated 
than in IACs. In IACs, the whole of the relevant discourse is through the vocabu- 
lary of LOAC. That is the principal source of international legal obligations. 24 Do- 
mestic law is likely to be of limited relevance, particularly to extraterritorial 
conduct. 25 In the case of internal NIACs, the constraints on the conduct of the do- 
mestic authorities are principally articulated through domestic law and HRsL. 

Confining emergency measures to the parts of the territory where the conflict is 
occurring and conflict- related activities elsewhere may be the approach currently 
favored by human rights bodies dealing with derogation during states of emer- 
gency. 26 Initially, the ECtHRs emphasized that, in order to justify derogating at all, 
the threat had to be to "the life of the nation" as a whole. 27 This might have been 
thought to imply that the conflict had to be occurring everywhere, thereby justify- 
ing the applicability of LOAC everywhere. More recently, the ECtHRs has ad- 
dressed the situations in Northern Ireland and southeast Turkey. 28 At no point was 
the argument raised that the two States could not derogate because the conflict was 
only occurring in part of their territories. At the same time, when dealing with cases 
arising in other parts of the respective States, neither the State itself nor the Court 
suggested that they should apply the emergency measures in those other areas. 

When the applicability of LOAC depends, among other elements, on the level or 
intensity of the violence, as is the case with Common Article 3 to the Geneva 

191 



DPH and the Interoperability ofLOAC and Human Rights Law 

Conventions of 1949 and Additional Protocol II of 1977, it is already the case that 
the applicability can vary at different times. That may be relevant when determin- 
ing whether a geographical limitation to the applicability of NIAC rules is, in prin- 
ciple, acceptable. 

In the rest of the article, it will be assumed that NIAC rules only apply to the ar- 
eas of the territory in which the conflict is occurring and to conflict-related issues 
elsewhere. In other parts of the territory, domestic law, including relevant human 
rights obligations of the State, will be applicable. 

The Function of Legal Rules in Situations of Armed Conflict 

The law does not exist to remove the decision-making authority of the military 
commander from him. The law determines the bottom line, below which conduct 
is unlawful. Just because conduct is not unlawful does not make it wise or apt for 
achieving the military purpose. It is possible that a commander could be prose- 
cuted on this basis, under national military law, for action that did not constitute 
an international crime. 29 

The flip side of these propositions is that the law cannot be based on a best-case 
scenario. In normal circumstances, a decision on opening fire is based on a law and 
order paradigm. 30 That means that it should be taken as a last resort and based on 
the behavior of the person targeted. It is dependent on the immediacy and severity 
of the threat that person poses at the time. In most situations of armed conflict, that 
is inappropriate as a bottom line. It may well be that most of the time and in most 
of the territory, even during an emergency, a law and order paradigm is appropri- 
ate, but in other situations it will not be. Rules are more likely to deliver the desired 
result if they are suited to the situation in which they are to be applied and for 
which they have been designed. In other words, just as in peacetime it is in every- 
one's interest, including that of military forces, to limit decisions on opening fire to 
a law and order paradigm, in many situations of armed conflict it is in everyone's 
interest, including that of the civilian population, for such decisions to be based on 
a LOAC paradigm. 

These principles need to inform the operationalization of the relationship be- 
tween HRsL and LOAC. To assert an unrealistic protection of civilians in situations 
of armed conflict based on HRsL is not likely to enhance their protection but rather 
to result in unrealizable expectations on the part of civilians and in increased viola- 
tion of the rules on the part of the armed forces. If some rules are perceived to be 
unrealistic, this is likely to lessen respect for those rules that can be applied in prac- 
tice. This is not to argue that at the first sound of gunfire LOAC should displace 
HRsL. The circumstances in which an armed conflict paradigm should replace a 
law and order paradigm will be considered further below. All that is being asserted 

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Francoise /. Hampson 



here is, first, that there are circumstances in NIACs when LOAC is the more appro- 
priate paradigm and, second, just because the law allows a soldier to open fire does 
not mean that it is necessarily the right thing to do in a particular situation in which 
LOAC is applicable. 

III. Distinctions within LOAC Relevant to the Rules on Targeting 

and Opening Fire 

Three distinctions need to be considered here: first, that between Hague law and 
Geneva law; second, that between treaty law and custom; and, third, that between 
the literal meaning of "direct participation in hostilities" (DPH) and the ICRC's 
Interpretive Guidance. 

Hague Law and Geneva Law 

Before 1977 and the adoption of the Additional Protocols to the Geneva Conven- 
tions of 1949, particularly Protocol I on international armed conflicts, any discus- 
sion took the distinction between Hague law and Geneva law for granted. The rules 
were usually to be found in different treaties, making the distinction both neces- 
sary and relatively straightforward. The usual way of describing the substantive 
content of the rules was that Hague law dealt with means and methods of fighting 
and Geneva law with the protection of victims who were, by definition, in the power 
of the other side. In fact, the rules were even more distinct than this might suggest. 
Hague law and Geneva law functioned differently as legal subsystems. This was a 
product of the issues with which each dealt, but it went much deeper than that. 

For reasons of brevity, it will be necessary to discuss the differences by way of 
sweeping generalizations. Even if they may be subject to criticism, that does not 
mean that there is not an essential truth at their heart. Hague law is directed to the 
military operator. It guides his decision making at the time. It deals principally with 
the places where, and times when, fighting is occurring. The rules tend to identify 
the considerations that must be taken into account and provide guidance as to how 
they are to be balanced, rather than simply prohibiting a particular outcome. 31 The 
rules are a detailed articulation of general principles, such as the principles of dis- 
tinction, proportionality and military necessity. 

Geneva law, on the other hand, is focused on the actual or potential victim, 
rather than the perpetrator. Many, but by no means all, of the issues that it ad- 
dresses arise away from the immediate field of battle. The law tends to prohibit 
certain results or outcomes, usually by requiring certain forms of behavior. The 
bottom line and the most appropriate behavior in a particular situation are likely 
to be much closer in the case of Geneva law than Hague law. If Hague law is 

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DPH and the Interoperability ofLOAC and Human Rights Law 

principally directed at the individual operator, Geneva law appears to focus more 
on the obligations of a party to the conflict. Geneva law provides answers or re- 
quired outcomes, but Hague law provides tools enabling the operator to arrive at an 
answer in a specific situation. To that extent, Geneva law appears to address types 
of situations, rather than specific ones. The nature of Geneva law may make it eas- 
ier to mesh with HRsL than is the case with Hague law. If, in the case of Geneva 
law, it is a question of finding an accommodation between LOAC and HRsL, in 
the case of a significant portion of Hague law it is a matter of making a choice. 
That is a product not only of the content of the rules but also of the nature of the 
separate legal subsystems. 

The internal logic of the two subsystems is therefore significantly different, with 
considerable implications for their functioning as systems. This is reflected in pre- 
sumptions, qualifications and limitations contained within the rules. If a goal of 
the Geneva Conventions is the protection of victims, it may mean that qualifica- 
tions to a rule have the nature of exceptions and suggests that they should be inter- 
preted restrictively. This would reinforce the parallel with HRsL. Hague law has no 
overarching goal. It seeks rather to establish a balance, one between humanitarian 
considerations and military necessity. To that end, there can be no default position 
or presumption in favor of either side of the equation. The rule itself contains the 
balance. There can be no appeal to military necessity outside the formulation of the 
rule. Equally, as a matter of law, there can be no appeal to humanitarian concerns 
outside the rule. There is no need to interpret limitations 32 restrictively. They 
should be given their natural meaning. 

Additional Protocol I appeared to merge Hague law and Geneva law. It is not, 
however, possible to "merge" two sets of rules that function in quite different ways. 
It might be possible to change each set of rules and to produce an entirely new type 
of rule, but that was not done. Rather, Protocol I contained some sections and pro- 
visions of a Hague-law type and some of a Geneva-law type. Additional Protocol II, 
which is largely a development of Common Article 3 of the Geneva Conventions of 
1949, is principally an example of Geneva law, but it does contain some Hague- 
type provisions, unlike Common Article 3. 

The specific question being explored in this article is targeting and the decision 
to open fire. Is that a matter of Hague law or Geneva law? While it might be 
tempting to see civilians at risk from the fighting as an additional class of victim 
to be protected under Geneva law, it is submitted that that analysis is flawed. The 
categories of victims protected by the four Geneva Conventions of 1949 share two 
characteristics. They have been adversely affected by the armed conflict and they 
are vulnerable because they are in the power of the other side. 33 Their protection 
does not, by and large, affect the conduct of hostilities, although it will be 

194 



Frangoise /. Hampson 



necessary to divert resources that could have been used for other purposes to ef- 
fect their protection. 34 Civilians in need of protection from the fighting do not fit 
within this framework. Their vulnerability arises not from the adversary but from 
the fact of the fighting. They need protection from their own side as much as 
from the enemy. Any measures to improve their protection will have a direct im- 
pact on the conduct of hostilities. In other words, rules on targeting and opening 
fire form part of Hague law, even if part of their object is the protection of the ci- 
vilian population. 

The Distinction between Treaty Law and Customary Law in LOAC 

Treaty Law 

Geneva Law. There is detailed and extensive provision in treaty law for Geneva- 
law- type issues in IACs. There is fairly detailed provision for such issues in treaties 
applicable in NIACs, with two significant exceptions — grounds for detention and 
the status of members of opposing organized armed groups. This is a logical conse- 
quence of the situations in question. Domestic law, possibly emergency law, is 
available to deal with the grounds for detention, at least in the case of internal 
NIACs. No sovereign State claiming a monopoly on the lawful use of force can 
logically admit that organized armed opponents have a special status or are acting 
other than unlawfully. To do so would be to recognize the belligerency, thereby 
making the conflict effectively subject to the IAC rules. There are some NIAC 
Geneva-type rules across the very low threshold of Common Article 3 of the 
Geneva Conventions of 1949. Those basic rules are further developed in situations 
that cross the significantly higher threshold for the applicability of Additional 
Protocol II. 

Hague Law. The situation is very different in the case of Hague law. Again, there is 
detailed regulation of the means and methods of fighting in treaties applicable in 
IACs. There are no treaty rules of a Hague-law type in Common Article 3 NIACs, 
however, and only very basic provisions in NIACs to which Additional Protocol II 
is applicable. The one exception is rules on specific conventional weapons, where 
the recent trend in treaty law is to make the same rules applicable in IACs and 
NIACs. 35 The treaties do not explain whether NIACs refer to all such conflicts or 
only those that cross the threshold of Additional Protocol II. 36 



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DPH and the Interoperability ofLOAC and Human Rights Law 

Customary Law 

Geneva Law. Assuming that the ICRC's Customary International Humanitarian 
Law i7 study, reinforced by the caselaw of the ICTY and International Criminal Tri- 
bunal for Rwanda (ICTR) and the Statute of the International Criminal Court in 
the specific field of criminal rather than civil obligations, offers a fairly accurate 
guide to customary law rules of a Geneva-law type, there is a close match between 
treaty provisions and customary law in both IACs and NIACs. Again, it is necessary 
to exclude rules on grounds for detention and the status of organized armed oppo- 
nents in the case of NIACs. 

Hague Law. The situation is very different in the case of Hague-law rules. There is 
a significant overlap in treaty and customary law rules of a Hague-law type in IACs 
but not in NIACs. The caselaw of the ICTY and ICTR and the Statute of the Inter- 
national Criminal Court, together with the customary law study, suggest that there 
are extensive and detailed customary rules of a Hague-law type in NIACs, even 
though there are no or only rudimentary treaty provisions. In reaching such con- 
clusions, not one of those sources distinguishes between Common Article 3 NIACs 
and Additional Protocol II NIACs. This is surprising given that there are no 
Hague-law-type treaty rules in Common Article 3 NIACs. They only appear in 
treaty law when a NIAC crosses the very high threshold for the applicability of Ad- 
ditional Protocol II. The most remarkable legal source in this respect is the Statute 
of the International Criminal Court, the only source based on inter-State negotia- 
tion. The negotiators took as their criterion for inclusion in the list of war crimes 
that the act was regarded as a war crime in customary international law. 38 The list in 
the Statute of Hague-law war crimes in NIACs is much shorter than that in IACs 
and, most notably, does not include launching an indiscriminate or disproportion- 
ate attack. The negotiating States are likely to have been influenced by the custom- 
ary war crimes in NIACs "discovered" by the ICTY and ICTR. It is nevertheless 
surprising that in the definition of NIACs in the Statute no distinction is drawn be- 
tween Common Article 3 and Additional Protocol II situations. 39 It would be rash 
to assume that the Statute of the International Criminal Court is evidence that the 
distinction no longer matters. The last time that States elaborated general rules for 
NIACs, they went out of their way to create a threshold of applicability much 
higher than Common Article 3. Nor should it be assumed that the ICRC's custom- 
ary law study is not controversial. In fact, that is far from being the case, particu- 
larly with regard to Hague-law-type issues. 40 

It is suggested that alleged customary NIAC rules of a Hague-law type that do 
not bear a close relationship to the NIAC treaty rules should be handled with some 



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Fran$oise J. Hampson 



care. The problem is not that such rules risk posing an undue and unwarranted ob- 
ligation on States; 41 it is rather that the alleged customary rules may imply a shift 
from a law and order paradigm to an armed conflict paradigm at an inappropri- 
ately low level of disruption. Since Geneva-law rules are focused on the protection 
of victims and bear a significant similarity to the approach of HRsL, their applica- 
bility at the Common Article 3 threshold does not appear to be too problematic. It 
is specifically customary rules of Hague law that give rise to this difficulty. More 
particularly, it is LOAC rules that permit action to be taken, rather than LOAC rules 
that prohibit attacks against certain types of targets or the use of certain weapons, 
that cause the problem. 

When the alleged applicability of customary Hague rules in a NIAC means 
that objects indispensable to the civilian population cannot be targeted or that 
anti-personnel land mines cannot be used, there is clearly no conflict between 
such a rule and HRsL. The situation is very different if the applicability of custom- 
ary Hague rules in all NIACs means that an individual can be targeted by virtue of 
being a member of an organized armed group exercising a continuous combat 
function — in other words, by reference to status — rather than on account of the 
threat posed by his behavior. 42 In low-intensity armed conflicts, the situation is 
likely to be made worse if armed forces target by reference to status rather than be- 
havior. Mistakes and "collateral casualties" may be even less well tolerated by the 
civilian population than in high-intensity NIACs. The issue is not whether armed 
forces can be used to deal with organized armed violence during an emergency, but 
whether whatever forces are used are applying rules based on a law and order para- 
digm or an armed conflict paradigm. 

Consider the example of "Bloody Sunday." 43 For the sake of argument, let us 
assume, first, that the events happened today; second, that the situation in 
(London)Derry is to be characterized as coming within Common Article 3 of the 
Geneva Conventions; 44 and, finally, that it is lawful under LOAC rules to open fire 
against an individual because of his membership in an organized armed group ex- 
ercising a continuous combat function. 45 Since the armed forces are unlikely to 
have membership lists of illegal organized armed groups, a membership test has to 
be understood as referring to presumed membership. It is not clear how that is to 
be determined. Can it seriously be suggested that it would be appropriate if inter- 
national law allowed the British armed forces to open fire against any presumed 
member of the IRA, irrespective of what he was doing at the time? Would it be suf- 
ficient if international law gave them that authority but a commander chose to act 
within greater restrictions than the law allowed and ordered his forces only to open 
fire in self-defense? 46 In other words, should such discretion have been allowed to a 
military commander or should international law have required him to act within a 

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DPH and the Interoperability ofLOAC and Human Rights Law 

law and order paradigm? That is the kind of problem thrown up by the alleged ap- 
plicability of customary Hague rules in all NIACs, rather than in those of sufficient 
intensity as to make Additional Protocol II applicable. 

The Literal Meaning of "Direct Participation in Hostilities" and the 
Interpretive Guidance 

According to treaty law, at least in the case of IACs, there exist only two possible 
statuses under LOAC in relation to the law on the conduct of hostilities: combatant 
and civilian. 47 The term "combatant" does not describe persons who fight, but 
persons who are entitled to fight. A combatant has the right to kill and, equally, 
can be killed by opposing combatants by virtue of having that status. 48 It does not 
matter what he is doing at the time he is killed. Only combatants can be targeted 
by virtue of status alone. The only other people who can be the target of attack are 
persons who are taking a direct part in hostilities. The status of combatant exists 
only in IACs. While it is readily understandable that members of an organized 
armed group are not regarded as combatants, implying as it does an entitlement to 
fight, this does raise an interesting question about the status of members of the 
State's armed forces. 49 If there is no combatant status in NIACs, are they civilians? 
Although an individual has no right in international law to participate in a NIAC, 
he is not committing an international crime by doing so, but obviously he is very 
likely to be committing a crime under domestic law. Similarly, he will not commit 
an international crime if he kills a member of the State's armed forces or a member 
of another organized group, but he will commit an international crime if he 
breaches the rules on the conduct of hostilities by intentionally killing a civilian, 
for example. 

The treaty rule that addresses DPH is the same in IACs and NIACs. Civilians en- 
joy the protection afforded against the effects of hostilities "unless and for such 
time as they take a direct part in hostilities." 50 Whatever the difficulties regarding 
the time during which a person can be attacked or the conduct that constitutes 
"taking a direct part," it is clear that the person has to be doing something that 
makes him a target of attack. In other words, that depends on behavior and not sta- 
tus. Two different types of problems confront armed forces trying to determine 
who can be targeted. First, the situations in which armed forces find themselves 
have evolved significantly since 1977. "A continuous shift of the conduct of hostili- 
ties into civilian population centres has led to an increasing intermingling of civil- 
ians with armed actors and has facilitated their involvement in activities more 
closely related to military operations." 51 A more recent phenomenon is the 
outsourcing of traditionally military functions. This could result in people appear- 
ing to be members of the military and to be engaged in hostilities when that is not, 

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Fran$oiseJ. Hampson 



in fact, the case. Alternatively, people could appear to be civilians but also appear to 
be involved in military activities. In other words, the factual situations in which 
members of the armed forces find themselves are increasingly confused. This must 
make it difficult to apply any rule, even if they knew what the rule meant. 

The second difficulty concerns the formulation of the rule itself. What is the 
period of time covered by "unless and for such time as"? When does it start and 
when does it end? Which activities constitute "participation" and what is the dis- 
tinction between direct and indirect participation? 

It is likely that there is an additional element of frustration and that is with the 
content of the rule. Imagine that there is significant evidence that X has been and is 
actively participating in hostilities, but the evidence is not of a quantity, type or 
character as to enable detention on a criminal charge. The armed forces cannot tar- 
get X unless they catch him in the act of participating, even though he may be re- 
sponsible for many deaths. 

In these circumstances, it is not surprising that the ICRC sought to clarify the 
meaning of the rule. 52 The Interpretive Guidance was the product of extensive con- 
sultation with experts who were consulted in their personal capacity, but is exclu- 
sively the responsibility of the ICRC. Much of the content, particularly in relation 
to IACs, is relatively uncontroversial. In non-IAC situations, however, that is not 
the case. In those instances, the Guidance is very controversial from various and 
sometimes conflicting standpoints. 53 The clarification of the constitutive elements 
of direct participation and of the beginning and end of direct participation will not 
be considered further here. What will be examined is the withdrawal of civilian sta- 
tus from members of organized armed groups in NIACs and its implications for 
the interoperability of LOAC and HRsL. 

The Interpretive Guidance treats civilians differently in IACs and NIACs. Since 
an IAC by definition involves at least two States on opposing sides, there is no 
shortage of "parties" to such a conflict. The Interpretive Guidance restates the usual 
test for combatant status. 54 All other persons are civilians but they may forfeit pro- 
tection from attack if they take a direct part in hostilities. In other words, loss of 
protection depends on the behavior of the individual. The Interpretive Guidance 
clarifies both the meaning of direct participation and also the time during which 
protection is lost. These clarifications have implications for loss of protection by 
civilians in IACs, but loss of protection is still dependent on behavior. 

The situation with regard to NIACs is very different. A person is no longer to be 
regarded as a civilian if he is a member of an organized armed group of a party to 
the conflict. Members of an organized armed group constitute the armed forces of 
a non-State party to the conflict and consist only of individuals who exercise con- 
tinuous combat functions. 55 This clearly means that an individual can be targeted 

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DPH and the Interoperability ofLOAC and Human Rights Law 

on account of his status as a presumed member of such a group and not on account 
of his behavior at the time he is targeted. Given the greater flexibility introduced as 
a result of the clarification of "unless and for such time as" and "direct participa- 
tion," it is not clear why it was thought necessary to address the status of a fighter in 
a NIAC at all. After all, no change appears to have been introduced to the status of a 
civilian who takes a direct part in hostilities in an IAC. That possibly represents an 
oversimplification. In an IAC, civilians who belong to an armed group that does 
not belong to a party to a conflict can indeed only be targeted if they take a direct 
part in hostilities. Many such groups will, however, belong to a party to the conflict, 
even if they do not form part of its regular armed forces. That party, which is by 
definition a State, will have responsibility in international law for the conduct of 
those armed forces. 56 In other cases, the armed group may belong to a party that is 
not a State but which is involved in an armed conflict against a party to the IAC. 
The Interpretive Guidance suggests that in such a case two armed conflicts will be 
occurring in parallel; an IAC between two States and a NIAC between the non- 
State party and one of the States parties. In that case, who can be targeted will be de- 
termined by the Interpretive Guidance principles applicable in NIACs. 57 If any- 
thing, that reinforces the point that the impact of the Guidance proposal only arises 
in NIACs. 

The principal justification suggested for denying civilian status to members of 
organized armed groups exercising continuous combat functions, while not also 
granting them combatant status, is the principle of distinction. 58 There is a need to 
distinguish between civilians and those who act like the armed forces of a party to 
the conflict. It is said that Common Article 3 to the Geneva Conventions of 1949 
implies that both the State and non-State groups have armed forces. 59 Less con- 
vincingly, it is argued that Additional Protocol II makes a distinction between 
those who take a direct part in hostilities and the forces that are capable of conduct- 
ing sustained and concerted military operations. 60 The Interpretive Guidance ac- 
knowledges that it is difficult to establish the membership of an organized armed 
group, in contrast to membership of the armed forces or other official armed 
group. 61 It is difficult to see how "continuous combat function" can be established 
other than by conduct, in which case we are driven back to a behavior test. It should 
be emphasized that loss of status does not depend on membership of a party to the 
conflict, or even of membership of an armed group belonging to such a party. It is 
also necessary to establish that the individual exercises a continuous combat 
function. 

Superficially, it might appear that the proposal supports the principle of the 
equality of belligerents, in that both parties are recognized as having armed forces. 
In fact, however, the members of an organized armed group exercising continuous 

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FranqoiseJ. Hampson 



combat functions lose civilian immunity from attack but do not gain the privileges 
of a combatant. 

It could, perhaps with equal plausibility, be argued that the principle of distinc- 
tion is based on the idea that there are only two statuses in LOAC: that of combat- 
ant and that of civilian. 62 A combatant is someone who has the right to take part in 
the hostilities and who therefore has the right to kill opposing combatants. Anyone 
who is not a combatant, therefore anyone who does not have those rights, is a civil- 
ian. In that case, members of organized armed groups must be civilians unless the 
opposing party recognizes their combatant status. Immunity from attack could be 
lost but only on the basis of the individual's behavior. 

The Interpretive Guidance just refers to NIACs and does not distinguish between 
Common Article 3 NIACs and Additional Protocol II NIACs. That is why the 
"Bloody Sunday" example discussed earlier represents a problem. The Interpretive 
Guidance approach would be easier to defend if it were restricted to situations 
above the threshold of applicability of Additional Protocol II, at least with regard to 
the level and nature of the violence. 63 

At present, there are two principal difficulties for armed forces: the scope of the 
rule and uncertain facts. Other aspects of the Interpretive Guidance address the 
temporal and functional issues. It is not clear why it was thought necessary to ad- 
dress the question of status before determining the impact of those clarifications. 
The bigger difficulty is uncertainty about the facts. It is hard to see how the Guid- 
ance helps there. The ability to target by reference to status depends on the ability to 
establish that the person targeted was a member of an organized armed group that 
belonged to a party to the conflict and the person fulfilled a continuous combat 
function within the group. This is likely to pose a real challenge to armed forces if 
such a determination is to be based on fact rather than a vague hunch. 

Perhaps as a counterweight to the withdrawal of civilian status from certain 
fighters, the Interpretive Guidance emphasizes that, when an individual can be the 
target of an attack, the kind and degree of force used must "not exceed what is actu- 
ally necessary to accomplish a legitimate military purpose in the prevailing circum- 
stances." 64 The Interpretive Guidance suggests that, in circumstances when it would 
not increase the risk to the opposing armed forces or to other civilians, the threat 
posed by the individual might be neutralized by measures short of the use of lethal 
force, notably detention. 65 It is submitted that this represents dangerous category 
confusion. 66 Key features of a law and order paradigm are, first, that force is used as 
a last resort and, second, that priority should be given to an attempt to detain. The 
essential feature of an armed conflict paradigm, as far as Hague-type rules are con- 
cerned, is that there is no obligation to detain. An individual can be targeted by vir- 
tue of his status, irrespective of what he is actually doing at the time, or on the basis 



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DPH and the Interoperability ofLOAC and Human Rights Law 

of his behavior at the time. As a matter of law, the combination of a right to use 
deadly force and a requirement to use the minimum force necessary would appear 
to be incoherent. 67 

It is submitted that there is a better solution, even in purely LOAC terms. It 
would also have the additional benefit of making easier the operationalization of 
the relationship between LOAC and HRsL. 

IV. A Comparison of the Basis for Opening Fire under HRsL and LOAC 

As indicated above, the majority of human rights treaties prohibit arbitrary kill- 
ings without defining the term. The meaning to be given to "arbitrary" becomes 
apparent through an examination of the practice of treaty bodies in exercising 
their monitoring functions and particularly through the caselaw arising out of 
individual complaints. In this context, it is also relevant to consider the analysis in 
the report to the UN Human Rights Council of the Special Rapporteur on Extraju- 
dicial, Summary or Arbitrary Executions. 68 

It is clear from the caselaw that the prohibition on arbitrary killings is applied 
strictly in the case of deaths resulting from the acts of State agents. 69 The only basis 
for opening fire is the behavior of the individual at the time, including the risk 
posed by the individual to himself or others. It is conceivable that it might, in lim- 
ited circumstances, be interpreted more broadly. It might be possible to argue that 
the agent could justify opening fire against an individual on account of the general 
risk he poses, rather than the risk posed by his behavior at the time. 70 It would, 
however, be necessary to establish why, if his behavior is not dangerous at the time, 
he cannot be detained. The use of potentially lethal force has to be a last resort. 

The European Convention for the Protection of Human Rights (ECHR) is un- 
usual in that it defines exhaustively the only circumstances in which resort may be 
had to potentially lethal force. 71 All those circumstances are based on a law and or- 
der paradigm, and are based on the behavior of the individual at the time. Further- 
more, the test is not that the use of potentially lethal force is reasonably necessary 
but that it is absolutely necessary. 72 In addition, the Convention requires that the 
State take measures to protect the right to life. This has been interpreted, in the case 
of planned operations, as requiring security forces to take measures to try to pre- 
vent the need to resort to potentially lethal force 73 and to protect other civilians in 
the vicinity from the risk of being injured or killed. 74 This can result in the State being 
held responsible for a death that resulted from the use of inappropriate weapons. 75 

All the treaty bodies require both lawful grounds for resorting to potentially 
lethal force and also that the force used be proportionate. This does not mean 



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Frangoise J. Hampson 



proportionality as it is understood in LOAC but that the force used is proportion- 
ate to the risk posed by the individual at the time. 76 

The analysis has so far considered the requirements of HRsL in a "normal" con- 
text. The question arises of how the rules are modified, if at all, by the existence of a 
situation of emergency or armed conflict. All the treaty bodies, other than the 
ECHR, provide that the prohibition of arbitrary killing is non-derogable. Prima facie, 
this means that it applies also in such situations. It is, however, possible that the 
meaning of "arbitrary" has sufficient flexibility to apply in a different way in such 
situations. There appears as yet to be no human rights caselaw involving killings 
arising out of circumstances in which LOAC indisputably applies a status test — in 
other words, in IACs. There are relevant cases currently pending before the 
ECtHRs. There is, however, caselaw arising out of situations in which the Interpre- 
tive Guidance would suggest that targeting by reference to status is legitimate — in 
other words, the targeting, in every type of NIAC, of a member of an organized 
armed group exercising a continuous combat function. The author is not aware of 
any such situation where the State invoked LOAC or the State claimed such a basis 
for opening fire. On the contrary, States have argued, successfully or otherwise, 
that the behavior of those targeted justified the resort to potentially lethal force 
and/or that the force used was proportionate. 

The ECHR is again different in that it provides, "No derogation from Article 2, 
except in respect of deaths resulting from lawful acts of war . . . shall be made under 
this provision." 77 This either represents a possible derogation or a defense. No State 
has ever invoked the article, even where the alleged violation of Article 2 occurred 
during the course of an armed conflict to which Common Article 3 of the Geneva 
Conventions was arguably applicable. 

It is submitted that human rights bodies appear to be wedded to a behavior test. 
Even assuming that they wish to give effect to the directions of the ICJ that, when 
both LOAC and HRsL are applicable, they should apply LOAC as the lex specialis, 
they are likely to be reluctant to go back on existing caselaw, either in NIACs gener- 
ally or specifically in the case of NIACs between the threshold of Common Article 3 
and that of Additional Protocol II. 

The basis of targeting in LOAC will be set out baldly here, since it has already 
been the subject of discussion. In IACs, there appears to be a close relationship be- 
tween the rules of treaty law and customary law. Under both, the following may be 
targeted by virtue of their status as combatants: members of the armed forces of a 
party to the IAC, members of a militia belonging to that party and members of a 
levee en masse. Others may only be targeted if they take a direct part in hostilities, ei- 
ther as interpreted on the basis of treaty law or as interpreted in the light of the In- 
terpretive Guidance. 

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DPH and the Interoperability ofLOAC and Human Rights Law 

In the case of NIACs, there is a marked difference between treaty law and what 
some allege to be customary law. Under treaty law, there is no guidance as to who 
may be targeted and on what basis under Common Article 3 of the Geneva Con- 
ventions. That presumably falls to be regulated by domestic law and HRsL. Where 
a NIAC crosses the much higher threshold necessary to make Additional Protocol 
II applicable, a person may only be targeted for taking a DPH. A person cannot be 
targeted by virtue of his status. 

An analysis of the position under customary law requires a distinction to be 
drawn between customary law without the Interpretive Guidance and customary 
law taking it into account. The expansive view, based on the Customary Interna- 
tional Humanitarian Law study, the caselaw of the ICTY and ICTR, and the provi- 
sions of the Statute of the International Criminal Court, suggests that in all NIACs 
a person can be targeted only if he takes a direct part in hostilities. This is not the 
same as the human rights test based on the threat posed by the behavior of the in- 
dividual at the time, but it is at least based on behavior. It might be possible for 
human rights bodies to accommodate themselves to that slight widening of the 
concept of threat, particularly those bodies applying a prohibition of "arbitrary 
killings." The picture changes if we take account of the Interpretive Guidance. On 
that basis, a person may be targeted in all NIACs either on account of his taking a 
direct part in hostilities or because he is a member of an organized armed group 
belonging to a party to the conflict and exercising a continuous combat function. 
That last element involves targeting on the basis of status and doing so in a situa- 
tion in which human rights bodies have hitherto applied, without apparent con- 
troversy, a behavior test. That is likely to complicate rather than to facilitate the 
operationalization of the relationship between LOAC and HRsL. 

V. Conclusion 

A human rights body, trying to give effect to the principle articulated by the ICJ, 
has to decide first whether LOAC is applicable. 78 It then has to decide what LOAC 
says. In order to identify the relevant LOAC rule, it has to characterize the armed 
conflict as an I AC or a NIAC. If it is an I AC, the possible distinction between treaty 
LOAC and customary LOAC is unlikely to be of major importance. That is not the 
case in relation to NIACs. The human rights body needs to know whether it should 
only apply treaty law, in which case there is a significant difference between situa- 
tions within Common Article 3 of the Geneva Conventions and those in which Ad- 
ditional Protocol II is applicable. On the other hand, if they are to apply both treaty 
and customary law, they have the unenviable task of determining the content of 
customary NIAC rules. The arguments as to the content of customary NIAC rules 

204 



Vranqoise /. Hampson 



are not for academics in ivory towers, dancing on the head of a pin; they have con- 
siderable practical importance. 

It is submitted that human rights bodies are likely to see themselves as having 
four options: 

( 1 ) They could regard LOAC as silent with regard to the basis for targeting in 
low-intensity armed conflicts, therefore applying their usual test under 
human rights law and limiting the application of DPH to conflicts in 
which Additional Protocol II was applicable. 79 This would still involve 
the application of a behavior test, but a slightly different one from the 
peacetime test. 

(2) They could apply DPH as the basis for targeting in all NIACs. This would 
still involve the application of a behavior test, but again a slightly differ- 
ent one from the peacetime test. 

(3) They could regard LOAC as silent with regard to the basis for targeting in 
low-intensity armed conflicts, therefore applying their usual test, but in 
this instance applying both DPH and a status test (member of an orga- 
nized armed group exercising a continuous combat function) in situa- 
tions in which Additional Protocol II was applicable. 

(4) They could use DPH as the basis for targeting in low-intensity armed 
conflicts and apply both DPH and a status test in situations in which Ad- 
ditional Protocol II was applicable. 

The one thing that human rights bodies are unlikely to accept is the application 
of a status test in low- intensity armed conflicts. 80 That is, however, precisely what 
the Interpretive Guidance proposes with regard to members of organized armed 
groups exercising continuous combat functions. The Interpretive Guidance has 
therefore complicated, rather than made easier, the relationship between LOAC and 
HRsL. The Interpretive Guidance makes it clear that it is only addressing LOAC and 
not other bodies of rules. 81 That is unhelpful since the majority of States have obli- 
gations under both LOAC and HRsL. There would appear to be little point in sug- 
gesting that States can target by reference to status in all NIACs if HRsL precludes 
that possibility, at least in the case of low-intensity armed conflicts. 82 The only situ- 
ation in which such a LOAC rule would conceivably be relevant would be a trans- 
national NIAC, if and only if HRsL was not applicable extraterritorially in the 
particular circumstances. 83 The Interpretive Guidance should either have confined 



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DPH and the Interoperability ofLOAC and Human Rights Law 

targeting by status to situations in which Additional Protocol II was applicable or 
not used targeting by status at all. 

Notes 

1. Nils Melzer, International Committee of the Red Cross, Interpretive 
Guidance on the Notion of Direct Participation in Hostilities under International 
HUMANITARIAN LAW (2009), available at http://www.icrc.org/eng/assets/files/other/icrc_002 
_0990.pdf [hereinafter INTERPRETIVE GUIDANCE]. 

2. Detention in transnational non-international armed conflicts (NIACs) has posed real 
problems of interoperability between LOAC and HRsL in Iraq and even more in Afghanistan. In 
large part, this is because domestic law is unlikely to address extraterritorial detention. In inter- 
nal NIACs, the matter will be regulated by domestic law and HRsL. The Copenhagen Process has 
sought to address the issue. Thomas Winkler, Acting Legal Advisor, Danish Ministry of Foreign 
Affairs, Address at the 31st Round Table on Current Issues of Humanitarian Law (Sept. 5, 2008), 
http://en.calameo.com/read/00000837926fb084b36c9. See generally Christopher Greenwood, 
Report, International Law Framework for the Treatment of Persons Detained in Afghanistan by 
Canadian Forces U 13 (2007), http://web.ncf.ca/fk624/data/Report%20-%20Greenwood%20(14 
%20Aug%2007).pdf. 

3. See generally Francoise J. Hampson, Is Human Rights Law of Any Relevance to Military 
Operations in Afghanistan?, in THE WAR IN AFGHANISTAN: A LEGAL ANALYSIS 485, 489-98 & 
nn.22-84 (Michael Schmitt ed., 2009) (Vol. 85, US Naval War College International Law Studies). 

4. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ^ 5 
(July 8); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Terri- 
tory, Advisory Opinion, 2004 1.C.J. 136, ffl| 106-13 (July 9) [hereinafter Wall Advisory Opinion]; 
Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116, 
1 216 (Dec. 19) [hereinafter Armed Activities]. 

5. In the cases cited in note 4 supra, the ICJ refers to LOAC as international humanitarian 
law (IHL). 

6. See generally Nancie Prud'homme, Lex specialis: Oversimplifying a More Complex and 
Multifaceted Relationship?, 40 ISRAEL LAW REVIEW 355 (2007); Francoise Hampson, Other areas 
of customary law in relation to the Study, in PERSPECTIVES ON THE ICRC STUDY ON CUSTOMARY 
INTERNATIONAL HUMANITARIAN LAW 68 (Elizabeth Wilmshurst & Susan Breau eds., 2007) 
[hereinafter PERSPECTIVES ON THE ICRC STUDY]. 

7. Hampson, supra note 6, at 68-72. 

8. "Special Procedures" is the general name given to the mechanisms established by the 
Human Rights Council to address either specific country situations or thematic issues in all parts 
of the world. Most of the UN Special Procedures obtain their mandates from the Human Rights 
Council, previously the UN Commission on Human Rights, which are then endorsed by the 
General Assembly. Most of the mandates address a specific issue, such as torture or extrajudicial, 
summary or arbitrary executions, but some deal with the human rights situation generally in a 
particular State. The mandates extend to all UN member States. Unlike a treaty, there is no re- 
quirement of express acceptance by a State. See generally Office of the United Nations High 
Commissioner for Human Rights, Special Procedures of the Human Rights Council, http:// 
www2.ohchr.org/english/bodies/chr/special/index.htm. For an example of a relevant recent 
report, see Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 
Study on Targeted Killings, Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 

206 



Frangoise /. Hampson 



2010) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/ 
14session/A.HRC. 14.24.Add6.pdf [hereinafter Alston Report]. 

9. The European Court of Human Rights under the European Convention for the Protec- 
tion of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter 
ECHR]; the Inter- American Court of Human Rights under the American Convention on Human 
Rights, Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter ACHR]; the African Court on Human and 
Peoples' Rights under the African Charter on Human and Peoples' Rights, June 27, 1981, OAU 
Doc. CAB/LEG/67/3 rev. 5, 21 INTERNATIONAL LEGAL MATERIALS 58 (1982). 

10. The Human Rights Committee can address individual complaints under the first 
Optional Protocol, Dec. 16, 1966, 999 U.N.T.S. 302 to the International Covenant on Civil 
and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR], but under Article 5.4 
of the Optional Protocol it adopts "views," rather than a binding legal judgment. 

1 1 . Hampson, supra note 3, at 498-502; Francoise J. Hampson, The Scope of the Extra- Territo- 
rial Applicability of International Human Rights Law, in THE DELIVERY OF HUMAN RIGHTS: 
ESSAYS IN HONOUR OF PROFESSOR SIR NIGEL RODLEY 157 (Geoff Gilbert, Francoise Hampson & 
Clara Sandoval eds., 2010); EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES 
(Fons Coomans & Menno T. Kamminga eds., 2004); Michael J. Dennis, Application of Human 
Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 
AMERICAN JOURNAL OF INTERNATIONAL LAW 119 (2005); Michael J. Dennis & Andre M. 
Surena, Application of the International Covenant on Civil and Political Rights in Times of Armed 
Conflict and Military Occupation: The Gap between Legal Theory and State Practice, 13 EUROPEAN 
HUMAN RIGHTS LAW REVIEW 714 (2008); Nigel Rodley, The Extraterritorial Reach and Applica- 
bility in Armed Conflict of the International Covenant on Civil and Political Rights: A Rejoinder to 
Dennis and Surena, 14 EUROPEAN HUMAN RIGHTS LAW REVIEW 628 (2009). See generally NOAM 
LUBELL, EXTRA-TERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS (2010). 

12. Wall Advisory Opinion, supra note 4, J 1 12; Armed Activities, supra note 4, ^ 216; U.N. 
Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation Im- 
posed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.l/Add.l3 (May 26, 2004); 
Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216. 

13. U.N. Human Rights Committee, Communication No. 52/1979 Lopez Burgos v. Uru- 
guay, Views of the Human Rights Committee, U.N. Doc. CCPR/C/13/D/52/ 1979 (July 29, 1981); 
Ocalan v. Turkey, App. No. 46221/99 (Eur. Ct. H.R. May 12, 2005) (Grand Chamber). 

14. Bankovic and Others v. Belgium, 2001 -XII Eur. Ct. H.R. 333, reprinted in 123 
International Law Reports 94 (2001). 

15. ICCPR, supra note 10, art. 2.1 ("Each State Party . . . undertakes to respect and to ensure 
to all individuals within its territory and subject to its jurisdiction"); ECHR, supra note 9, art. 1 
("The High Contracting Parties shall secure to everyone within their jurisdiction"); ACHR, 
supra note 9, art. 1 ("The States Parties to this Convention undertake to respect the rights and 
freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and 
full exercise of those rights and freedoms"). There is no jurisdictional clause in the African Char- 
ter, supra note 9. 

16. This does not mean that extraterritoriality will be of no significance to such bodies, since 
it may have an impact in relation to State responsibility for positive obligations outside national 
territory. 

17. The English courts are required, under the Human Rights Act 2000, to take account of 
the caselaw of the ECtHRs. In The Queen on the Application of"B" & Others v. Secretary of State 
for the Foreign and Commonwealth Office [2004] EWCA (Civ) 1344 [59] (unreported, Oct. 18, 
2004), a case that concerned the actions of consular officials in Australia, the Court of Appeal had 



207 



DPH and the Interoperability ofLOAC and Human Rights Law 

difficulty in reconciling the decisions of the ECtHRs in Bankovic, supra note 14, and Ocalan, supra 
note 13. In Al-Skeini& Others v. Secretary of State for Defence [2004] EWHC (Admin) 2911 [222], 
the High Court had difficulty in reconciling the decisions of the ECtHRs in Bankovic and Issa & 
Others v. Turkey, App. No. 31821/96, Eur. Ct. H.R., Chamber, Admissibility Decision (May 30, 
2000); Issa and Others v. Turkey, App. No. 31821/96, 41 Eur. Ct. H.R. Rep. 567 (2004). 

18. Prosecutor v. Tadic, Case No. IT-94-1-1, Decision on Defence Motion for Interlocutory 
Appeal on Jurisdiction, fflj 68-70 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995); The 
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, HH 635-36 (Sept. 2, 1998). 

19. The destruction, capture or neutralization of an object has to offer a definite military ad- 
vantage in order for the thing to be a military objective as defined in Article 52.2 of Protocol Ad- 
ditional to the Geneva Conventions of 1 2 August 1 949, and Relating to the Protection of Victims 
of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Proto- 
col I]. Had the roads and bridges been so used, they would have become military objectives. In 
other words, the advantage of using the definition of "military objective" to determine the geo- 
graphical scope of applicability of LOAC is that it depends on the facts and the conduct of the 
parties, rather than a potentially arbitrary geographical yardstick. 

20. The treaty rules appear to have been designed for situations of internal NIAC, that is to 
say, an armed conflict within a State either between that State and one or more organized armed 
groups or between such groups themselves within the territory of a State. The treaty language 
means that Common Article 3 of the Geneva Conventions of 1949 is capable of applying to an 
armed conflict in State B between State A and an organized armed group based in and fighting 
from State B. Convention for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3 1 14, 75 U.N.T.S. 3 1 ; Convention for the 
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at 
Sea art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of 
Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the 
Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 
287 [hereinafter Geneva Convention IV] . Additional Protocol II of 1977 cannot be applicable in 
such a situation since it requires the State party to an armed conflict to be the same State as the 
one in whose territory the conflict is fought. Protocol Additional to the Geneva Conventions of 
1 2 August 1 949, and Relating to the Protection of Victims of Non-International Armed Conflicts 
art. 1, June 8, 1977, 1 125 U.N.T.S. 609 [hereinafter Additional Protocol II]. 

2 1 . "Certainly, some of the provisions are clearly bound up with the hostilities and the geo- 
graphical scope of those provisions should be so limited." Tadic, supra, note 18, J 68. 

22. E.g., the United Kingdom in relation to Northern Ireland and Turkey in relation to the 
situation in southeast Turkey in the late 1980s and early 1990s. 

23. This raises the question of how to establish customary law in NIACs. Are domestic judi- 
cial decisions that may not be based on LOAC but purely on domestic law relevant as a source? 
When trying to establish custom, is it appropriate to look at a situation in which LOAC appears 
to be applicable and then to examine any evidence of the existence of rules, whatever their source 
or nature, or is the only relevant information evidence of international rules of a LOAC type 
thought to be applicable? See I CUSTOMARY INTERNATIONAL HUMANITARIAN LAW xxv-xlv 
(Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005) & infra note 40. 

24. With the possible addition of HRsL and other areas of international law insofar as they 
are unaffected by the existence of the armed conflict, see the ongoing work of the International 
Law Commission on the Effects of Armed Conflicts on Treaties, http://untreaty.un.org/ilc/ 
guide/ l_10.htm (last visited Jan. 1 7, 20 1 1 ). 



208 



Franqoise J. Hampson 



25. It is likely to be more relevant to measures taken domestically on account of the IAC, e.g., 
evacuation or detention of enemy aliens. 

26. The ECHR, supra note 9, art. 15; ACHR, supra note 9, art. 27, and ICCPR, supra note 10, 
art. 4, expressly envisage the possibility that there may be an emergency within a State of such a 
character as to require the State to take exceptional measures and to prevent it from applying 
ordinary measures in the usual way. The treaties provide that, in such a situation, the State may 
modify the scope of certain of its human rights obligations, subject to procedural requirements 
with regard to notification. The process is known as derogation. Certain rights are non- 
derogable (e.g., the prohibition of arbitrary killings under the ICCPR and the ACHR, and of tor- 
ture under all three treaties; see further infra). Even potentially derogable rights may have a non- 
derogable core. For example, a derogation to the usual requirements with regard to detention 
may justify a longer than usual period before a detainee is brought before a judicial officer or 
administrative detention but it will never justify enforced disappearances. See generally U.N. 
Human Rights Committee, General Comment No. 29, U.N. Doc. CCPR/C/21/Rev.l/Add.ll on 
Art. 4 ICCPR, If 16 (2001); Hampson, supra note 3, 492-94. 

27. Lawless v. Ireland, 3 Eur. Ct. H.R. (ser. A) ffl| 28-29 (1961). 

28. Brogan & Others v. United Kingdom, App. Nos. 1 1209/84, 1 1234/84, 1 1266/84 & 1 1386/ 
85, 1 1 Eur. H.R. Rep. 117 (1988) (Eur. Ct. H.R.); Brannigan & McBride v. United Kingdom, App. 
Nos. 14553/89 & 14554/89, 258 Eur. Ct. H.R. (ser. A) 29 (1993); Aksoy v. Turkey, 1996-VI Eur. 
Ct. H.R. 2260. 

29. For example, if in an IAC a commander gave the order that armed forces could only open 
fire in self-defense and a member of the armed forces deliberately killed a combatant who did not 
pose a threat to him, the soldier has not acted in violation of LOAC but could be punished for 
disobeying a lawful order. 

30. That is usually the case under domestic law. Under most HRsL, the test is whether a kill- 
ing is arbitrary. What is arbitrary in peacetime is not the same as that which is arbitrary in time of 
conflict. The caselaw of human rights bodies suggests that peacetime killings are analyzed in 
terms of a law and order paradigm. Article 2 of the ECHR is different and unique in that it sets 
out the only grounds on which a State may resort to the use of potentially lethal force. Those 
grounds are based on a law and order paradigm. See further note 71 infra and accompanying text. 

31. An obvious exception is the absolute prohibition of intentional attacks against civilians 
and the civilian population. The distinction between Hague-law prohibitions and Hague-law 
permissions will be considered further below. 

32. E.g., "for reasons of imperative military necessity" and "unless circumstances do not 
permit." 

33. An exception is Geneva Convention IV, supra note 20, Part 2, which addresses the "gen- 
eral protection of populations against certain consequences of war." 

34. E.g., evacuating and caring for the wounded and sick, and using members of the armed 
forces to run prisoner of war camps. 

35. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weap- 
ons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 
Oct. 10, 1980, 1342 U.N.T.S. 137, reprinted in 19 INTERNATIONAL LEGAL MATERIALS 1523 
(1980). Amended Article 1 made the Convention as a whole and therefore all its protocols appli- 
cable in both IACs and NIACs. Amendment to the Convention on Prohibitions or Restrictions 
on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injuri- 
ous or to Have Indiscriminate Effects, Doc. No. CCW/CONF/II/2 (Dec. 21, 2001). A subsequent 
Protocol on Explosive Remnants of War (Protocol V), Nov. 27, 2003, U.N. Doc. CCW/MSP/ 
2003/2, was therefore applicable in both IACs and NIACs from the start. That change had already 



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DPH and the Interoperability ofLOAC and Human Rights Law 

been made with regard to the Protocol on Blinding Laser Weapons (Protocol IV), Oct. 13, 1995, 
U.N. Doc. CCW/CONF.I/7 (Oct. 12, 1995) as a result of the 2001 amendment and the Amended 
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices 
(Amended Protocol II), May 3, 1996, S. Treaty Doc. No. 105-1 (1997) was applicable in both 
IACs and NIACs from the start as a result of Article 1.2 of the Protocol. 

The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti- 
Personnel Mines and on Their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211, reprinted in 36 
INTERNATIONAL LEGAL MATERIALS 1507 (1997) and the Convention on Cluster Munitions, 
Dec. 3, 2008, 48 INTERNATIONAL LEGAL MATERIALS 357 (2008) prohibit the use of the weapons 
defined in those treaties in all circumstances, therefore in both IACs and NIACs. 

The significance of the distinction between Hague-law prohibitions and Hague-law permis- 
sive rules will be considered further. 

36. There is a real difficulty in making the weapons rules applicable in both situations, but it 
is not attributable to the distinction between prohibitions and permissions in Hague law, rather 
to the paradigm confusion between law and order/law enforcement and an armed conflict para- 
digm. Certain weapons that are traditionally used and have an important role to play in law en- 
forcement are prohibited in IACs, most notably expanding bullets and riot control agents, such 
as tear gas. The increasing complexity of modern conflict, sometimes characterized as "three- 
block warfare," results in different rules being applicable in different situations at the same time. 
The difficulties to which that gives rise in practice are likely to be exacerbated if the clear distinc- 
tion between what is permitted and prohibited in different situations and paradigms becomes 
blurred. An example of such confusion is Resolution RC/Res.5 adopted at the Review Confer- 
ence of the Rome Statute on June 8, 2010, which adds to the list of war crimes in NIACs "(xv) 
Employing bullets which expand or flatten easily in the human body, such as bullets with a hard 
envelope which does not entirely cover the core or is pierced with incisions." Resolutions and 
Declarations adopted by the Review Conference, http://212.159.242.181/iccdocs/asp_docs/ 
ASP9/OR/RC-1 l-Part.II-ENG.pdf (last visited Jan. 17, 201 1). 

The difficulties would be reduced if the changes were confined to situations in which Addi- 
tional Protocol II is applicable, since an armed conflict paradigm is more clearly applicable in 
such situations than those in which the level of violence comes within Common Article 3 but not 
Additional Protocol II. It should be noted that, in some circumstances, Additional Protocol II 
will not be applicable for a different reason. If State A is engaged in an armed conflict in State B 
against a non-State armed group based in State B, Additional Protocol II is not applicable since 
the State in whose territory the conflict is being fought is not a State party to the conflict. Never- 
theless, the level of violence and the degree of organization and control of the non-State actor 
might be sufficient to satisfy the high threshold of Additional Protocol II were it not for this bar- 
rier to its applicability. 

37. Customary International Humanitarian Law, supra note 23. 

38. Knut Dormann, War Crimes under the Rome Statute of the International Criminal Court, 
with a Special Focus on the Negotiations on the Elements of Crimes, in 7 MAX PLANCK YEARBOOK OF 
UNITED NATIONS LAW 341, 345 (Armin von Bogdandy & Rudiger Wolfrum eds., 2003). The one 
exception was anything addressing the recruitment or use of child soldiers, which was an example of 
progressive development. It appears to be universally acceptable as a rule, if not in the observance. 

39. Statute of the International Criminal Court art. 8.2(d) & (f), July 1 7, 1998, 2 187 U.N.T.S. 
90. Interestingly the definition of "an armed conflict not of an international character" differs 
slightly as between the list of criminalized violations of Common Article 3 and other 
criminalized violations. In the case of the former, the list of crimes "does not apply to situations 
of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other 



210 



Fran$oise J. Hampson 



acts of a similar nature." This reflects Article 1.2 of Additional Protocol II of 1977. In the case of 
war crimes in NIACs not based on Common Article 3, the definition in Article 8.2(f) starts in the 
same way but continues, "It [paragraph 2(e)] applies to armed conflicts that take place in the ter- 
ritory of a State when there is protracted armed conflict between governmental authorities and 
organized armed groups or between such groups." The reference to "protracted" is not to be 
found in Common Article 3 itself but is one of the elements thought necessary to constitute an 
armed conflict by the ICTY, as reflected by the judgment in the Tadic case, supra note 1 8. It is not 
clear whether this is simply intended to serve as a definition of a Common Article 3 NIAC (in 
which case why was the same text not included in subparagraph d?) or whether it is intended to 
create a new threshold in the case of war crimes not based on Common Article 3. If the threshold 
is different, it would explain why it is not used in subparagraph d. It is not clear whether the 
threshold is higher or merely different. 

40. John B. Bellinger III & William J. Haynes II, A US Government Response to the Interna- 
tional Committee of the Red Cross Study Customary International Humanitarian Law, 89 
INTERNATIONAL REVIEW OF THE RED CROSS 443 (2007). See generally PERSPECTIVES ON THE 
ICRC STUDY, supra note 6. The study has been challenged on a variety of grounds. Some have 
questioned the nature of some of the materials used as evidence of State practice. Others have 
questioned the sufficiency of the evidence used to establish the existence of a rule. Yet others ac- 
cept the manner in which a rule is formulated but challenge the accuracy of the commentary. 

41. While the focus in this text is on the responsibilities of States, since only States (and argu- 
ably quasi-State entities) have legal obligations under HRsL, it should not be forgotten that the 
applicability of customary LOAC rules of a Hague-law type across the threshold merely of Com- 
mon Article 3 would have implications for non-State organized armed groups. 

42. INTERPRETIVE GUIDANCE, supra note 1. See further discussion infra pp. 198-202, The 
Literal Meaning of "Direct Participation" in Hostilities and the Interpretive Guidance. 

43. See REPORT OF THE BLOODY SUNDAY INQUIRY (2010), available athttp://report.bloody 
-sunday-inquiry.org/. The author has chosen to call the city of Northern Ireland where the 
events of Bloody Sunday occurred, known as both Deny and Londonderry, (London)Derry, so 
as to accommodate both the Catholic/Nationalist and Protestant/Unionist views of the name. 

44. The Foreign and Commonwealth Office of the United Kingdom denied that the situa- 
tion in Northern Ireland ever crossed the threshold of Common Article 3. Many members of the 
Army Legal Services appear to be of the view that at certain times and in certain places the situa- 
tion did cross that threshold. 

45. Proposed as the test in all NIACs in the Interpretive Guidance. See INTERPRETIVE 
Guidance, supra note 1, at 36. 

46. At the time, as a matter of domestic law, the armed forces only had the same authority as 
a policeman to open fire and that was based on a law and order paradigm. 

47. The term "combatant" is used in Additional Protocol I (e.g., Articles 43 and 44) and re- 
places the use of "belligerent" in Regulations Respecting the Laws and Customs of War on Land, 
annexed to Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 
36 Stat. 2227 [hereinafter Hague Regulations]. Article 50 of Additional Protocol I effectively de- 
fines civilians as persons who are not combatants. The terms are therefore mutually exclusive 
and no one can fall in between the two. Combatants include not only members of the regular 
armed forces, but also members of a militia who satisfy the requirements of Article 43 of Addi- 
tional Protocol I or Article 1 of the Hague Regulations, supra, and members of a levee en masse 
under Article 2 of the same treaty. 

48. Additional Protocol I, supra note 19, art. 43.2. A combatant cannot be prosecuted for the 
fact of fighting or for killing opposing combatants. 



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DPH and the Interoperability ofLOAC and Human Rights Law 

49. Interpretive Guidance, supra note l, at 27. 

50. Additional Protocol I, supra note 20, art. 51.3; Additional Protocol II, supra note 19, art. 
13.3. 

51. Interpretive Guidance, supra note l, at 1 1. 

52. The Interpretive Guidance is clear that it is not intended to and does not effect any change 
in the law. See, e.g., id. at 19. 

53. For detailed scrutiny of the Interpretive Guidance, see Forum, The ICRC Interpretive 
Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian 
Law, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 637 (2010). 
The whole issue is devoted to the Guidance. This article criticizes it from a standpoint not ad- 
dressed in other writings, which tend to focus on an exclusively LOAC perspective. 

54. See supra note 47. 

55. Interpretive Guidance, supra note l, at 27. 

56. Id. at 23. 

57. Id. at 24. 

58. Mat 27-28. 

59. Id, at 28. 

60. Id. at 29. 

61. Id. at 32-33. 

62. Article 50. 1 of Additional Protocol I, in effect, defines a civilian as any person who is not 
a combatant. 

63. See comment in supra note 36 on the circumstances in which only Common Article 3 
will be applicable, notwithstanding the existence of a level and nature of violence as to satisfy the 
threshold of Additional Protocol II. 

64. Interpretive Guidance, supra note l, at 82. 

65. Id. at 81. 

66. See generally W. Hays Parks, Part IX of the ICRC "Direct Participation in Hostilities" 
Study: No Mandate, No Expertise and Legally Incorrect, 42 NEW YORK UNIVERSITY JOURNAL OF 
International Law and Politics 769, 801-2 (2010). 

67. In certain circumstances, it may make operational sense to say that armed forces are free 
to target by reference to status but, if an opportunity arises to detain, they should do so, whether 
in the hope of obtaining intelligence or to assist in the "battle for hearts and minds." That is not 
the same as combining the two elements. The default position is the targeting test. Detention is 
merely an alternative option. See also Parks, id. at 809. 

68. Alston Report, supra note 8. Since the mandate of Professor Alston, the Special Rappor- 
teur preparing the report, contains no requirement that the victim be within the jurisdiction of 
the State, his comments on the extraterritorial applicability of the obligation to protect the right 
to life are not of direct assistance in determining the scope of applicability in the case of treaties 
containing such a requirement. There is no reason to have any such reservation in relation to the 
meaning to be ascribed to "arbitrary." The mandate is generally interpreted as covering similar 
ground to Article 3 of the Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. 
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948), and Article 6 of the ICCPR, su- 
pra note 10. In other words, it is not limited to executions but extends to killings generally. See 
Office of the United Nations High Commissioner for Human Rights, International Standards, 
http://www2.ohchr.org/english/issues/executions/standards.htm (last visited Jan. 17, 2011). 

69. See, e.g., Husband of Maria Fanny Suarez de Guerrero v. Colombia, Human Rights 
Comm., 37th Sess., No. R.l 1/45, P 12.2, U.N. Doc. Supp. No. 40 (A/37/40) (1982); McCann v. 
United Kingdom, App. No. 18984/91, 324 Eur. Ct. H.R. (ser. A)fflj 147-50 (1995). 



212 



Fran$oise /. Hampson 



Those concerned with the relationship between LOAC and HRsL in the context of targeted 
killings have paid considerable attention to "the targeted killings case." Public Committee 
against Torture in Israel v. Government of Israel, HCI 769/02, Judgment (Dec. 13, 2006), 46 
INTERNATIONAL LEGAL MATERIALS 373 (2007), available at http://elyon 1 .court.gov.il/files_eng/ 
02/690/007/a34/02007690.a34.pdf. 

It should be noted that the Israeli court went out of its way to stress the very particular context 
in which the case arose, that is, occupied territory adjacent to the territory of the occupying 
power. See generally William J. Fenrick, The Targeted Killings Judgment and the Scope of Direct 
Participation in Hostilities, 5 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 332-38 (2007). 

70. Potentially, that could include behavior which constituted direct participation in hostili- 
ties but which did not represent a threat to others at the time. 

71. Article 2 of the ECHR provides: 

1 . Everyone's right to life shall be protected by law 

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article 
when it results from the use of force which is no more than absolutely necessary: (a) in 
defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to 
prevent the escape of a person lawfully detained; (c) in action lawfully taken for the pur- 
pose of quelling a riot or insurrection. 

72. McCann v. United Kingdom, supra note 69, If 149. 

73. Id., 1HJ 192-94. 

74. Ergi v. Turkey, App. No. 23818/94, 32 Eur. H.R. Rep. 388 (1998). 

75. Gulec v. Turkey, 28 Eur. H.R. Rep. 121, If 71 (1998). 

76. Noam Lubell, Challenges in Applying Human Rights Law to Armed Conflict, 87 
International Review of the Red Cross 737, 745-46 (2005). 

77. ECHR, supra note 9, art. 15.2. 

78. Francoise J. Hampson, The Relationship Between International Humanitarian Law and 
Human Rights Law from the Perspective of a Human Rights Treaty Body, 90 INTERNATIONAL 
Review of the Red Cross 549 (2008). 

79. When the conflict is of the requisite intensity for Additional Protocol II to be applicable, 
but it is not applicable because the conflict occurs in the territory of a State not a party to the con- 
flict, it should be treated as an Additional Protocol II conflict for these purposes. It is beyond the 
scope of this article to consider whether Article 1.1 of Additional Protocol II should be amended 
to replace "its armed forces" by "the armed forces of a High Contracting Party." 

80. See generally David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-judicial Exe- 
cutions or Legitimate Means of Defence?, 16 EUROPEAN JOURNAL OF INTERNATIONAL LAW 171 
(2005). 

8 1 . Interpretive Guidance, supra note l , at 1 1 . 

82. "Low-intensity conflict" is used so as to exclude situations in which only Common Arti- 
cle 3 to the Geneva Conventions is applicable, not on account of the limited intensity of the vio- 
lence, but because the State in whose territory the conflict is fought is not a party to the conflict. See 
supra notes 36 8c 79. 

83. The reference here is to a conflict in the territory of State B between the armed forces of 
State A and a non-State actor in State B. Where State A is assisting State B in an armed conflict 
against a non-State actor, State A is acting extraterritorially but the conflict is not transnational. 
If the consent of State B is the basis for the presence of State A, State B may have the obligation, 
under HRsL, to ensure that any State assisting it should respect State B's human rights obliga- 
tions. No issue would arise for State B as to the scope of the extraterritorial applicability of HRsL. 



213 



PART VI 



THE CHANGING CHARACTER OF WEAPON 
SYSTEMS: UNMANNED SYSTEMS/UNMANNED 

VEHICLES 



IX 



Use of Unmanned Systems to Combat 

Terrorism 



Raul A. "Pete" Pedrozo* 

/. Introduction 

As the number of unmanned systems to support military operations has pro- 
liferated over the past decade, so too have the legal issues associated with 
their use in conventional warfare and the "war on terrorism." Between 2000 and 
2008, the number of unmanned aerial systems (UAS) in the US Department of De- 
fense (DoD) inventory jumped from under fifty to over six thousand. 1 By March 
2010, the number had increased to over seven thousand. 2 In fiscal year 2009, UAS 
conducted over 450,000 flight hours; the number of hours in 2010 was expected to 
exceed 550,000. 3 To support this increasing reliance on unmanned systems, the Air 
Force is expanding the number of UAS pilots and air operations staffers from 450 to 
1,100 by 20 12. 4 In 2009, the Air Force trained more UAS pilots than fighter pilots. 5 
Today, unmanned systems are being used across the entire spectrum of opera- 
tions, from their traditional role of intelligence, surveillance and reconnaissance 
(ISR) to an emerging role of offensive strike operations. UAS have clearly become 
the weapon of choice to target terrorists and other militants in isolated locations 
within Pakistan and Yemen. In 2007, for example, there were only 5 UAS attacks in 
Pakistan. 6 The number of aerial attacks increased to 36 in 2008, and during the 
first year of the Obama administration the number jumped to 53. 7 During the first 



* Associate Professor, International Law Department, US Naval War College. 



Use of Unmanned Systems to Combat Terrorism 



four months of 2010, UAS have conducted 60 attacks in Pakistan. 8 If the current 
pace continues, the number of UAS attacks could well exceed 150 in 2010. 

The importance of the relationship between the use of unmanned systems and 
the law is not lost on our military and civilian leaders. At a session on unmanned 
naval technologies at the Brookings Institution in November 2009, the Chief of 
Naval Operations, Admiral Gary Roughead, acknowledged that "as unmanned 
systems become ubiquitous on the modern battlefield in everything from targeting 
to disrupting the flow of enemy information . . . , there are going to be legal issues 
that come up and issues related to the law of war." 9 Four months later, the State De- 
partment Legal Adviser, Harold Koh, defended the Obama administration's use of 
UAS to engage terrorist targets in Pakistan and elsewhere, indicating that "U.S. tar- 
geting practices, including lethal operations conducted with the use of unmanned 
aerial vehicles, comply with all applicable law, including the laws of war." 10 

Not everyone agrees, however, that the use of unmanned systems to attack ter- 
rorist targets outside traditional "combat zones," like Afghanistan and Iraq, is con- 
sistent with international and domestic law. Some of the criticisms that will be 
examined in this paper include: 

• The United States is not engaged in an armed conflict with al-Qaeda or any 
other militant group. Terrorist attacks are criminal acts that must be addressed 
with law enforcement measures, not armed attacks that give rise to the use of mili- 
tary force in self-defense. The use of force in this context is governed by interna- 
tional human rights law (IHRL), not international humanitarian law (IHL). 
Because armed drones are warfighting, not law enforcement, tools, they may not 
be used to strike terrorist targets outside the combat zone. 

• Targeting individual terrorist leaders constitutes an unlawful extrajudicial 
killing in violation of IHRL, as well as the ban on assassination under Executive 
Order (E.O.) 12333. 

• Conducting UAS strikes against terrorist targets within the territory of an- 
other nation without the consent of that nation violates Article 2(4) of the UN 
Charter, which restricts nations from using force against the territorial integrity or 
political independence of any State. 

• Even if the right of self-defense applies, the use of UAS to attack terrorist tar- 
gets outside Afghanistan and Iraq violates the IHL principles of military necessity, 
proportionality and distinction. 

• If the United States is engaged in an armed conflict, civilian UAS operators 
(e.g., Central Intelligence Agency (CIA) operatives) are unlawful combatants and 
may not participate in hostilities. Only lawful combatants have a right to use force 
during an armed conflict. 

218 



Raul A. "Pete" Pedrozo 



• UAS strikes may only be conducted against civilians who have taken a direct 
part in hostilities. Although acts of terrorism may cause harm, most do not meet 
the criteria for direct participation in hostilities (DPH). State responses to these 
acts must conform to the lethal force standards applicable to self-defense and law 
enforcement. 

• The use of advanced weapons systems in lethal operations against terrorists 
is illegal under international law. 

II. Armed Attack or Threat of Attack by Non-State Actors and the 

Right of Self-Defense 

Opponents to the use of drones outside of Afghanistan and Iraq argue that the "war 
on terrorism" is a myth because al-Qaeda's actions and US responses thereto "have 
been too sporadic and low- intensity to qualify as armed conflict." 11 They cite Pros- 
ecutor v. Tadic and Additional Protocol II (AP II) to support their position. In 
Tadic, the International Criminal Tribunal for the former Yugoslavia determined 
that an "armed conflict exists wherever there is a resort to armed force between 
States or protracted armed violence between governmental authorities and orga- 
nized armed groups or between such groups within a state." 12 AP II similarly pro- 
vides that armed conflicts do not include "situations of internal disturbances and 
tensions, such as riots, isolated and sporadic acts of violence and other acts of a 
similar nature." 13 These opponents further argue that an armed military response 
to a terrorist attack will almost never meet the requirements for the lawful exercise 
of self-defense, because "terrorist attacks are generally treated as criminal acts . . . , 
not armed attacks that can give rise to the right of self-defense." 14 They additionally 
argue that the use of military force "long after the terror act . . . loses its defensive 
character and becomes unlawful reprisal." 15 

These arguments are incorrect as a matter of law and are clearly not supported 
by State practice. Foremost, they ignore the fact that more innocent victims have 
died at the hands of terrorists since 9/11 than on the battlefields of Afghanistan 
and Iraq combined. These numbers do not include the thousands of innocent civil- 
ians killed by al-Qaeda, the Taliban and other militant groups in Afghanistan and 
Iraq since 2002. These figures also do not take into account the fact that the num- 
ber of deaths and injuries would have been much higher had several planned ter- 
rorist attacks been successful. To argue that al-Qaeda's actions have been too 
sporadic and low-intensity to qualify as an armed conflict is disingenuous, at best. 
Al-Qaeda operatives have attacked US embassies and consulates, US naval vessels, 
US military bases, the Pentagon and the US financial center in New York. With 
operations in over sixty countries, al-Qaeda has trained, equipped and supported 

219 



Use of Unmanned Systems to Combat Terrorism 



a potent armed force that continues to plan and execute attacks against the United 
States and its interests worldwide on a scale that requires a proportionate military 
response. Despite coalition successes in Iraq, Afghanistan and around the world, 
al-Qaeda continues to pose a significant and imminent threat to the United States 
and its allies. In short, the armed conflict against the organization and its affiliates 
is far from over. 

The opponents' arguments likewise disregard the fact that the law regarding 
armed attacks by non-State actors and the application of IHL (i.e., the law of armed 
conflict (LOAC)) to these armed groups have evolved dramatically since the mid- 
1990s, particularly after 9/11. Based on actions taken by the UN Security Council, 
the North Atlantic Treaty Organization (NATO) and the Organization of American 
States (OAS) after the 9/11 terrorist attacks, it is now well recognized that non- 
State actors can engage in an armed attack that gives rise to the right of national and 
collective self-defense. 

A. Armed Attacks by Non-State Actors 

On September 11, 2001, terrorists associated with al-Qaeda crashed two commer- 
cial jets into the twin towers of the World Trade Center (WTC), another jet into the 
Pentagon and a fourth in a field in rural Pennsylvania. Nearly three thousand peo- 
ple, mostly civilians, were killed and thousands of others were injured. 

Immediately following these brutal and unprovoked attacks, the Security Coun- 
cil determined that al-Qaeda, a non-State actor, had conducted an armed attack 
against the United States, giving rise to the right of individual and collective self- 
defense under Article 51 of the Charter. 16 Security Council Resolution 1368 (2001) 
further determined that the 9/11 attack, "like any act of international terrorism," 
was a "threat to international peace and security" and expressed a readiness "to 
take all necessary steps to respond to the terrorist attacks of . . . [9/11], and to com- 
bat all forms of terrorism." 17 

NATO soon followed suit, invoking Article 5 of the Washington Treaty for the 
first time in its history. Article 5 provides that if a NATO ally is the victim of "an 
armed attack" each and every member of the alliance will consider that act as an 
armed attack against all members and will take actions they deem necessary in 
collective self-defense to assist the ally that has been attacked (emphasis 
added). 18 A few weeks later, recalling the inherent right of individual and collec- 
tive self-defense, the OAS adopted a resolution on September 21 acknowledging 
that the 9/11 attack against the United States was an attack "against all American 
states and that in accordance with [Article 3 of] . . . the Inter-American Treaty of 
Reciprocal Assistance (Rio Treaty) . . . , all States Parties . . . shall provide effective 
reciprocal assistance to address such attacks and the threat of any similar attacks 

220 



Raul A. "Pete" Pedrozo 



against any American state . . . ." 19 The resolution further decided that "the States 
Parties shall render additional assistance and support to the United States and to 
each other ... to address the September 1 1 attacks, and also to prevent future ter- 
rorist acts" 20 (emphasis added). 

Domestically, the US Congress responded by adopting a joint resolution — Au- 
thorization to Use Military Force (AUMF) — that authorized the President "to use 
all necessary and appropriate force against those nations, organizations, or persons 
he determines planned, authorized, committed, or aided the terrorist attacks that 
occurred on September 11, 2001, or harbored such organizations or persons, in order 
to prevent any future acts of international terrorism against the United States by such 
nations, organizations or persons" 21 (emphases added). The US Supreme Court 
subsequently "recognized the AUMF as the functional equivalent of a declaration 
of war" in the Hamdi and Hamdan decisions and the 2010 National Security Strat- 
egy continues to reflect the view that the United States is "at war with . . . al-Qa'ida, 
and its terrorist affiliates who support efforts to attack the United States, our allies, 
and partners." 22 

Based on these international and domestic authorities, the United States com- 
menced military operations in self-defense against al-Qaeda and the Taliban in Af- 
ghanistan on October 7, 2001. Of note, military operations against non-State 
actors are consistent with prior US practice. Throughout its history, the United 
States has engaged in a number of armed conflicts with groups that it has not rec- 
ognized as sovereign nations in such conflicts as the US Civil War, Indian wars, 
Philippine Insurrection and Vietnam War (Viet Cong). 23 The question today is 
whether these historical precedents and the 2001 authorities remain viable in 2010, 
and whether they (along with the inherent right of self-defense) can be extended to 
apply to terrorist forces that continue to plan and conduct acts of aggression 
against the United States and its allies outside the borders of Afghanistan and Iraq. 

Clearly, the answer to both of these questions is yes. Following 9/11, the Secu- 
rity Council, NATO and OAS all determined that the United States had been "at- 
tacked" by al-Qaeda, giving rise to the right of national and collective self-defense. 
These determinations are consistent with the plain language of Article 5 1 of the 
UN Charter, which simply refers to armed attacks against a member State (i.e., 
"nothing . . . shall impair the inherent right of individual or collective self-defense 
if an armed attack occurs against a Member of the United Nations" (emphasis 
added)). The Charter does not require that the attack be conducted by a nation- 
State. Moreover, none of these organizations placed temporal or geographic re- 
strictions on the use of force in self-defense. On the contrary, the opposite is true. 
Resolution 1368 specifically decided that " any act of international terrorism [is] . . . 
a threat to international peace and security" (emphasis added). Moreover, the 

221 



Use of Unmanned Systems to Combat Terrorism 



resolution expressed a readiness "to take all necessary steps ... to combat all forms 
of terrorism" not just the 9/11 attack (emphasis added). The OAS resolution simi- 
larly provided that the States parties would provide assistance and support to the 
United States to address the 9/ 1 1 attacks, as well as "the threat of any similar attacks 
against any American state ... to prevent future terrorist acts" (emphases added). 
And while NATO simply decided that all member States should take the actions 
they deemed necessary to assist the United States following the 9/11 attacks, it did 
not limit that assistance to a particular country or military operation. Likewise, al- 
though the AUMF adopted by Congress focuses on the nations, organizations or 
persons that planned, authorized, committed or aided the 9/11 attacks (or har- 
bored such organizations or persons), the law does not place any temporal or geo- 
graphic restrictions on the use of force. It simply provides that the President can 
use all necessary and appropriate force against those responsible for the 9/11 at- 
tacks "in order to prevent any future acts of international terrorism against the 
United States by such nations, organizations or persons" (emphasis added). 

Despite the use-of-force measures authorized by these international and re- 
gional organizations, as well as the US Congress, opponents to the use of drones to 
attack terrorists outside of Afghanistan and Iraq nevertheless argue that these 
authorities are dated and that use of force based on continued reliance on these 
authorities has lost its defensive character and amounts to unlawful reprisals. As- 
suming for the sake of argument that the opponents are correct in saying that the 
United States is not at war with al-Qaeda and that the 2001 authorities have some- 
how lapsed, that does not end the debate. The inherent right of self-defense still 
provides an adequate legal basis to use lethal force against terrorist targets in Paki- 
stan and elsewhere that demonstrate a continuing and imminent threat of armed 
attack against the United States and its interests. 

B. The Inherent Right of Self-Defense 

Customary international law, as reflected in Article 5 1 of the UN Charter, recognizes 
that all nations enjoy an inherent right of individual and collective self-defense. 
Included within this right is the right of anticipatory self-defense — the right of a 
nation to protect itself from an imminent attack where peaceful means are not rea- 
sonably available to prevent the attack. 24 Clearly, it would be inconsistent with the 
purposes of the Charter if a nation was required to absorb a first strike, e.g., another 
9/11 or a weapon of mass destruction attack, before taking necessary and propor- 
tionate military measures to prevent an imminent attack by an armed aggressor. In 
this context, "imminent" does not necessarily mean immediate or instantaneous. 
As indicated in the 2006 US National Security Strategy: 



222 



Raul A. "Pete" Pedrozo 



[T]he first duty of the United States Government remains what it always has been: to 
protect the American people and American interests. It is an enduring American prin- 
ciple that this duty obligates the government to anticipate and counter threats, using all 
elements of national power, before the threats can do grave damage. The greater the 
threat, the greater is the risk of inaction — and the more compelling the case for taking 
anticipatory action to defend ourselves, even if uncertainly remains as to the time and 
place of the enemy's attack 

To forestall or prevent such hostile acts by our adversaries, the United States will, if 
necessary, act preemptively in exercising our inherent right of self-defense. The United 
States will not resort to force in all cases to preempt emerging threats. Our preference is 
that nonmilitary actions succeed. And no country should ever use preemption as a pre- 
text for aggression. 25 

The determination of whether an attack is imminent is therefore based on an as- 
sessment of all facts and circumstances known at the time — real-time intelligence, 
heightened political tensions, previous and current threats by the aggressor, pat- 
tern of aggression/attacks, stated intentions of the aggressor, etc. 

The pivotal question today is whether the ongoing activities of al-Qaeda and its 
supporters continue to pose an imminent threat to the United States and its allies 
that would justify the use of armed force in self-defense to preempt future attacks 
against US interests at home and abroad. If one examines past and current acts of 
aggression committed by al-Qaeda and its affiliates against the United States and 
its allies, the answer to that question is clearly yes. 

Since the first attack on the WTC in 1993, there have been over seventy major 
terrorist attacks against the United States and its allies that have resulted in the 
deaths of over five thousand people, most of whom were innocent civilians. 26 
These deaths exceed the total number of US soldiers killed in action in Afghanistan 
and Iraq since the beginnings of Operation Enduring Freedom and Operation 
Iraqi Freedom. 27 Over sixty of these incidents have occurred since 9/11, resulting in 
over sixteen hundred deaths and thousands of others injured. These numbers 
would be much higher if you count the thousands of innocent civilians that have 
been killed by al-Qaeda and the Taliban in Iraq and Afghanistan or had several 
planned attacks — such as the December 1999 plot to bomb the Los Angeles airport, 
the December 2001 failed "shoe bomber" attack, the foiled attack on a British air- 
liner in Saudi Arabia in August 2003, the August 2006 plot to blow up ten planes 
bound for the United States, the June 2007 failed car bombings in London, the De- 
cember 2009 failed "underwear bomber" attack and the May 2010 failed bombing 
in Times Square — been successful. 



223 



Use of Unmanned Systems to Combat Terrorism 



It is clear from these incidents that al-Qaeda continues to pose an imminent 
threat to the United States and its allies and continues to threaten large-scale at- 
tacks against the United States and US interests. For instance, in November 2008, 
a former senior Yemeni al-Qaeda operative told the London-based Al-Quds Al- 
Arabi newspaper that Osama bin Laden was planning an attack against the United 
States that would outdo 9/11 and that al-Qaeda was reinforcing "training camps 
around the world that will lead the next wave of action against the West." 28 In June 

2009, Al-Jazeera television broadcast a message from bin Laden that threatened 
Americans with revenge for supporting Pakistan's military offensive to expel the 
Taliban from Swat Valley. 29 Six months later, a Nigerian man (Umar Farouk 
Abdulmutallab, the "underwear bomber") with links to al-Qaeda attempted to 
ignite an explosive device on board a Northwest Airlines flight with 278 passengers 
on board as the plane prepared to land in Detroit on Christmas day. 30 Fortunately, 
the device failed to ignite, but bin Laden nevertheless claimed responsibility for 
the attempted bombing. 31 In January 2010, the US embassy in Yemen was closed 
in response to ongoing threats by al-Qaeda. 32 An attack on the embassy in 2008 
had killed nineteen, including an eighteen-year-old American woman. 33 In March 

2010, Al-Jazeera aired a tape in which bin Laden threatened to kill any American 
captured by al-Qaeda if the United States executed Khalid Sheikh Mohammed, 
the alleged mastermind of the 9/11 attack. 34 

In early May 2010, a naturalized US citizen from Pakistan, Faisal Shahzad, 
unsuccessfully attempted to ignite a car bomb that contained gasoline, propane, 
fertilizer and fireworks in Times Square. 35 According to Attorney General Holder, 
it was "clear that this was a terrorist plot aimed at murdering Americans in one of 
the busiest places in the country." 36 Shahzad was arrested by the Federal Bureau of 
Investigation on May 4. During his interrogation, he admitted his role in the at- 
tempted attack and that he had received explosives training in Pakistan during a 
then-recent visit. 37 On June 21, Shahzad pled guilty to ten criminal counts, includ- 
ing the attempted use of a weapon of mass destruction, and indicated that until the 
United States "stops the occupation of Muslim lands and stops killing the Mus- 
lims ... we will be attacking [the] U.S." 38 The Pakistani Taliban immediately took 
credit for the attack and there is now evidence that the group was intimately in- 
volved in the failed attack. 39 Several additional suspects have been arrested in Paki- 
stan, including an executive (Salman Ashraf Khan) of a catering company that 
routinely organizes events for the US embassy, and three Pakistanis were taken into 
custody in the United States for their suspected roles in the attack. 40 

In mid-May, Indonesian police foiled an al-Qaeda plot to assassinate President 
Susilo Bambang Yudhoyono and other senior government officials at the upcom- 
ing Independence Day (August 17) celebrations in Jakarta. The plan also included 

224 



Raul A. "Pete" Pedrozo 



attacking hotels and killing foreigners — in particular, Americans. In addition to 
arresting a large number of suspected militants at an al-Qaeda training camp in 
Aceh, the Indonesian police also seized a large number of assault rifles, thousands 
of rounds of ammunition and jihadist literature. 41 

And on May 17, 2010, Iraqi security forces announced they had arrested a 
known al-Qaeda militant, Abdullah Azam Saleh al-Qahtani, who was planning an 
attack at the World Cup in South Africa and on June 26, 2010, a Pakistani suspect 
in the 2008 Mumbai attacks was arrested in Zimbabwe when he tried to cross into 
South Africa with a false Kenyan passport. 42 Finally, on July 11, 2010, the Somali 
insurgent group al-Shabab, which has ties to al-Qaeda, claimed responsibility for a 
coordinated attack that killed more than seventy people, including a number of 
foreigners (one was an American), that were watching the final match of the World 
Cup on outdoor screens in Kampala, Uganda. 43 

In discussing the ongoing terrorist threat against the United States and its allies, 
Director of National Intelligence Michael McConnell told Congress in November 
2008 that al-Qaeda was "improving the last key aspect of its ability to attack the US: 
the identification, training and positioning of operatives [i.e., Western recruits, in- 
cluding American citizens] for an attack on the homeland." 44 According to a study 
by the New America Foundation, "between 100 and 150 Westerners are believed to 
have traveled to the [Federally Administered Tribal Areas] FATA in 2009" to train 
with Taliban militants. 45 Arguably, these new recruits will be able to move around 
the United States and Europe more easily and be more difficult to detect than tradi- 
tional foreign operatives. 

There is also growing evidence that al-Qaeda's anti-American/anti-Western 
ideology has been adopted by a number of Islamist extremist groups in Europe and 
North America. 46 A Pennsylvania woman (Colleen LaRose, a.k.a. Jihad Jane), for 
example, was indicted in March 2010 for "conspiracy to provide material support 
to terrorists and kill a person in a foreign country." 47 LaRose conspired with five 
unnamed coconspirators to, inter alia, recruit "men online to wage violent jihad in 
South Asia and Europe . . . [and] women online who had passports and the ability to 
travel to and around Europe in support of violent jihad." 48 According to the indict- 
ment, LaRose believed that "her physical appearance would allow her to blend in 
with many people." 49 A second US citizen, Jamie Paulin Ramirez, was indicted in 
April 2010 for her involvement in the conspiracy with Jihad Jane. 50 Irish police 
have since arrested seven additional individuals involved in the conspiracy. 51 

In June 2010, a federal grand jury in Houston indicted Barry Walter Bujol, a US 
citizen from Hempstead, Texas, for attempting to provide material support to al- 
Qaeda, including personnel, money, prepaid phone cards, SIM cards, global posi- 
tioning systems, cell phones and restricted publications on the effects of US 

225 



Use of Unmanned Systems to Combat Terrorism 



military weapons (e.g., UAS) in Afghanistan. 52 On the same day, an Ohio couple 
from Toledo, Hor I. and Amera A. Aki, dual US-Lebanese citizens, were arrested 
for conspiring to provide material support to Hezbollah. 53 And on June 5, 2010, 
two New Jersey men (Mohamed Mahmood Alessa and Carlos Eduardo Almonte) 
were arrested at Kennedy International Airport as they attempted to board sepa- 
rate planes for Somalia. The two men intended to join al-Shabab and receive train- 
ing in Somalia in order to kill American troops. 54 Finally, to further illustrate the 
ability of al-Qaeda to recruit and direct terrorist operations in the West, on July 8, 
2010, Norwegian officials announced the arrest of three al-Qaeda operatives for 
their roles in plotting a foiled 2009 New York subway attack and planning to blow 
up a shopping center in Manchester, England. 55 

In response to continuing al-Qaeda activities and threats aimed at US interests 
at home and abroad, President Obama indicated in November 2009 that terrorist 
networks like al-Qaeda remained the greatest threat to US security. 56 Similarly, 
Secretary of State Clinton stated in February 2010 that the greatest threat to the 
United States was transnational non-State terrorist networks like al-Qaeda, com- 
menting that al-Qaeda was a "very committed, clever, diabolical group of terrorists 
who are always looking for weaknesses and openings." 57 On March 9, 2010, the 
US Maritime Administration issued an advisory that warned ships transiting the 
Bab-el-Mandeb Strait, Red Sea and the Gulf of Aden along the coast of Yemen that 
al-Qaeda remains interested in maritime attacks in these waters and that the 
attacks could be similar in nature to the attack against the USS Cole (2000) or the 
M/V Limberg (2002), "where a small to mid-size boat laden with explosives was 
detonated in the vicinity of the targeted ships." 58 The advisory further indicated, 
however, that "it cannot be ruled out that the extremists may be capable of other [,] 
more sophisticated methods of targeting, such as the use of missile[s] or projectiles 
to target ship[s] such as the mortars used to target a Navy ship in Jordan in 
2005." Finally, a May 2010 Department of Homeland Security memo indicates 
that "the number and pace of attempted [terrorist] attacks against the United 
States over the past nine months have surpassed the number of attempts during 
any other previous one-year period" and that terrorists will attempt to conduct 
strikes within the United States with "increased frequency" and with "little or no 
warning. ^ 

In short, despite the substantial progress that has been made toward eliminating 
the threat posed by terrorists, al-Qaeda and its affiliates remain a potent and deter- 
mined force with the capability and intent to strike the US mainland, its allies and 
US interests abroad at every opportunity with the most destructive means at their 
disposal. The militant groups continue to train and equip their fighting forces in 
order to plan and execute devastating attacks against the United States and its allies 

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Raul A. "Pete" Pedrozo 



around the world. Under these circumstances, international law allows the United 
States to preemptively use proportionate force in self-defense to eliminate the con- 
tinuing and imminent threat posed by al-Qaeda and other terrorist groups. 
Whether one agreed or disagreed with the former Bush administration's initiatives 
following 9/11, the President's statement in 2004 regarding the war on terror can- 
not be ignored: 

The war on terror is not a figure of speech. It is an inescapable calling of our generation. 
. . . There can be no separate peace with the terrorist enemy. Any sign of weakness or re- 
treat simply validates terrorist violence and invites more violence for all nations. The 
only certain way to protect our people is by early, united, and decisive action. 60 

Until the threat is effectively eliminated, the United States can continue to use 
force in self-defense against al-Qaeda and its supporters, to include the use of un- 
manned systems. 

Despite disagreements with some of the Bush administration's policies with re- 
gard to the wars in Afghanistan and Iraq, the Obama administration appears to 
have adopted the Bush approach to the use of drones in Pakistan and elsewhere. 
On March 24, 2010, Department of State Legal Adviser Harold Koh delivered the 
keynote speech at the Annual Meeting of the American Society of International 
Law (ASIL). In part, Mr. Koh discussed the strategic vision of international law that 
the Obama administration was attempting to implement, what he called "The Law 
of 9/1 1: detentions, use of force, and prosecution." 61 In defending US targeting of 
terrorists in Pakistan and elsewhere, Mr. Koh indicated that, as a matter of interna- 
tional law, the United States is engaged in an "armed conflict with al-Qaeda, as well 
as the Taliban and associated forces, in response to the horrific 9/11 attacks, and 
may use force consistent with its inherent right to self-defense under international 
law." 62 Mr. Koh further emphasized that al-Qaeda continues to pose an imminent 
threat to the United States: "[A]l-Qaeda has not abandoned its intent to attack the 
United States, and indeed continues to attack us." 63 Accordingly, he continued, 
"the United States has the authority under international law, and the responsibility 
to its citizens, to use force, including lethal force, to defend itself, including by tar- 
geting persons such as high-level al-Qaeda leaders who are planning attacks." 64 

III. Lawful Targeting of Belligerents v. Extrajudicial Killings/Assassination 

Opponents to the use of drones argue that IHRL is the governing body of law that 
must be applied when using deadly force against terrorists outside the traditional 
combat zone. They further argue that IHRL prohibits extrajudicial killing. Under 



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an IHRL/law enforcement construct, deadly force should only be used as a last re- 
sort to save lives and only after lesser means have failed. Accordingly, before using 
deadly force, an attempt should be made to capture the terrorist or allow him/her 
an opportunity to surrender. They argue that the use of UAS to target terrorists in 
Pakistan, Yemen, Somalia and elsewhere violates the IHRL prohibition on extraju- 
dicial killing, as well as the US ban on assassination in E.O. 12333. 

These arguments incorrectly assume that the United States is not engaged in an 
armed conflict with al-Qaeda and that the targeted terrorist groups do not pose an 
imminent and continuing threat to the United States, either of which gives rise to 
the inherent right of self-defense. In short, nothing in E.O. 12333 or IHL/LOAC 
restricts the lawful use of force in self-defense against an enemy belligerent (privi- 
leged or unprivileged) or against a group that poses an imminent or continuing 
threat to the United States and its interests. 

A. The Assassination Ban under E.O. 12333 

Assassination of foreign nationals has been prohibited as a matter of US domestic 
policy since 1976 when President Ford signed E.O. 11905. Section 5(g) provides 
that "no employee of the United States Government shall engage in, or conspire 
to engage in, political assassination." 65 The reference to "political" assassination 
was dropped by the Carter administration in E.O. 12036, opting instead to generi- 
cally prohibit "assassination." 66 An identical prohibition is found in section 2. 1 1 of 
E.O. 12333. 67 Although "assassination" is not defined in the executive orders, the 
term involves the intentional killing (or murder) of a targeted individual commit- 
ted for political purposes. 68 The purpose of E.O. 12333 is, therefore, to prevent the 
killing of foreign public officials for political purposes. It does not, however, limit 
the lawful use of force in self-defense against terrorists or other groups that pose 
an imminent or continuing threat to the security of the United States and its citi- 
zens. 69 

It is widely recognized that enemy belligerents — whether members of the armed 
forces of a State or civilians and non-State actors directly participating in hostili- 
ties — may be lawfully targeted and killed at all times, subject to the IHL principles 
of military necessity and proportionality. 70 Therefore, the ambush by US aircraft 
and downing of the Japanese aircraft, over Bougainville, on April 1 8, 1943, carrying 
Admiral Isoroku Yamamoto, the Japanese commander of the Pearl Harbor attack, 
was not considered an assassination, but rather a lawful attack on an individual 
combatant — a legitimate military target. 71 Likewise, President Reagan's authoriza- 
tion to attack Moammar Gadhafi's home in Libya following the 1986 Berlin disco- 
theque bombing that killed an American service member and injured 230 others 
was not considered a violation of the executive order's ban on assassination, 

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Raul A. "Pete" Pedrozo 



because Gadhafi was a legitimate military target. 72 During the first Gulf War 
(1991), coalition aircraft targeted 580 command and control targets, including 260 
leadership targets (e.g., Saddam Hussein's palaces and places that he frequented). 73 
These attacks were not considered as violations of the assassination ban. Similarly, 
President Clinton authorized missile attacks against the Iraqi Intelligence Service 
(the Mukhabarat) headquarters on June 26, 1993 after he was informed that 
Kuwaiti forces had foiled an Iraqi-sponsored assassination attempt against former 
President George H.W. Bush. 74 

Five years later, President Clinton again authorized cruise missile strikes, on this 
occasion against a chemical plant in Sudan and al-Qaeda training camps in Af- 
ghanistan after terrorists bombed the US embassies in Kenya and Tanzania, killing 
224 people and injuring over 4,500 others. 75 None of the strikes authorized by 
President Clinton were considered violations of E.O. 12333. Finally, following 
9/11, the Bush administration concluded that the assassination ban did not prevent 
the United States from targeting terrorist leadership and command and control 
capabilities in self-defense. 76 This determination was later used to justify the 2002 
targeted killing of Qaed Salim Sinan al-Harethi, a senior al-Qaeda leader, in Yemen 
by a CIA drone. 77 

Similarly, since 9/1 1, it is equally clear that under UN Security Council Resolu- 
tion 1368 (2001) a State may use force in self-defense against acts of aggression by 
terrorist groups. It is also clear under customary international law and Article 5 1 of 
the Charter that a nation may use force in self-defense against the imminent or 
continuing threat of attack by these groups. Therefore, killing al-Qaeda members 
and other militants who are engaged in ongoing acts of violence against the United 
States and its allies, and who have the capabilities and stated intentions to continue 
to conduct such attacks in the future, is an act of self-defense, not murder, hence 
not assassination. 

Based on the increased number of drone attacks authorized by President 
Obama against suspected terrorist targets in Pakistan's FATA, it appears that the 
Obama administration has taken a similar approach to that of its predecessor. 78 
The administration's position on the issue of assassination was clearly articulated 
by the State Department Legal Adviser at the ASIL meeting. During his keynote ad- 
dress, Mr. Koh stated that 

individuals who are part of . . . an [enemy] armed group are belligerents and, therefore, 
lawful targets under international law. . . . 

[A] state that is engaged in an armed conflict or in legitimate self-defense is not re- 
quired to provide targets with legal process before the state may use lethal force 



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Use of Unmanned Systems to Combat Terrorism 



[Ujnder domestic law, the use of lawful weapons systems — consistent with the appli- 
cable laws of war — for precision targeting of specific high-level belligerent leaders 
when acting in self-defense or during an armed conflict is not unlawful, and hence does 
not constitute "assassination." 79 

B. Extrajudicial Killing under International Law 

1. Reports and Correspondence of the Special Rapporteur to the UN Human 
Rights Council 

In January 2003, the Special Rapporteur on Extrajudicial, Summary or Arbitrary 
Executions (hereinafter Special Rapporteur) submitted a report to the UN Human 
Rights Council indicating that a November 2002 UAS strike that killed six al- 
Qaeda militants in Yemen was a "clear case of extrajudicial killing." 80 Despite find- 
ing that (1) the government of Yemen had approved the attack; (2) the militants 
(including a senior al-Qaeda official, Abu Ali al-Harithi) had been involved in the 
attacks on the Cole and the French oil tanker Limburg; (3) prior attempts to appre- 
hend the suspects had been unsuccessful; and (4) "governments have a responsibil- 
ity to protect their citizens against the excesses of non-State actors or other 
authorities" the Special Rapporteur determined that the actions by the United 
States and Yemen violated IHRL and IHL. 81 

In August 2005, a new Special Rapporteur (Philip Alston) sent a letter to the US 
government requesting information on the use of UAS to target and kill Haitham 
al-Yemeni, a senior al-Qaeda figure, on the Pakistan-Afghanistan border on May 
10, 2005. The Special Rapporteur reiterated the view that questions of IHL fall 
squarely within his mandate and that "efforts to eradicate terrorism must be un- 
dertaken within a framework" governed by IHRL, as well as IHL. 82 Dissatisfied 
with the US response to the August letter, the Special Rapporteur submitted a re- 
port to the Human Rights Council in May 2009 alleging that the United States is 
using drones to engage in targeted killings on the territory of other States and that 
these attacks have caused a number of civilian casualties. Mr. Alston additionally 
alleged that the United States had been evasive in responding to his questions re- 
garding the legal basis for its targeting decisions and urged the Obama administra- 
tion to reconsider the previous administration's "positions and move to ensure the 
necessary transparency and accountability" for its drone program. 83 Having failed 
to receive a response from the new administration, Mr. Alston took his case to the 
"court of public opinion." In October 2009, he reiterated his position in a New 
York Times article stating that "the United States must demonstrate that it is not 
randomly killing people in violation of international law through its use of drones 



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Raul A. "Pete" Pedrozo 



on the Afghan border" and that the US refusal to respond to UN "concerns that the 
use of drones might result in illegal executions was an 'untenable' position." 84 

2. US Responses to the Special Rapporteur 

The United States responded to the January 2003 al-Harithi report on April 14 of 
that year, indicating that "inquiries related to allegations stemming from any mili- 
tary operation conducted during the course of an armed conflict . . . [did] not fall 
within the mandate of the Special Rapporteur" and that the United States dis- 
agreed with his conclusion that "military operations against enemy combatants 
could be regarded as extrajudicial executions by consent of Governments." 85 In 
support of its position, the United States pointed out that military operations con- 
ducted by a government against legitimate military targets like al-Qaeda were gov- 
erned by IHL/LOAC, which allows enemy combatants to be attacked unless they 
have surrendered or are otherwise rendered hors de combat. The US response fur- 
ther emphasized that the United States was at war with al-Qaeda and related ter- 
rorist networks and that, despite coalition successes around the world, the war was 
far from over. With operations in more than sixty countries, al-Qaeda had effec- 
tively trained, equipped and supported armed forces that have planned and exe- 
cuted attacks worldwide against the United States "on a scale that far exceeds 
criminal activity." 86 More important, al-Qaeda terrorists continued to plan addi- 
tional attacks against the United States and its allies and were, therefore, subject to 
armed attack by US forces. In conclusion, the United States stressed that the mili- 
tary operations conducted against the United States and its nationals by al-Qaeda 
both before and after 9/11 "necessitate a military response by the armed forces of 
the United States"; to conclude otherwise would "permit an armed group to wage 
war unlawfully against a sovereign state while precluding that state from defend- 
ing itself." 87 

The United States submitted a similar response to the Special Rapporteur's letter 
requesting information regarding the killing of Haitham al- Yemeni on the Pakistan- 
Afghanistan border in May 2005. Recalling its April 2003 letter, the United States 
reemphasized that legitimate military operations conducted by a government dur- 
ing an armed conflict do not fall within the mandate of the Special Rapporteur and 
that the conduct of such operations is governed by IHL/LOAC. For the reasons 
previously stated in 2003, the United States reiterated that it was engaged in a con- 
tinuing armed conflict with al-Qaeda and that the military operations conducted 
and planned against the United States and its nationals by the terrorist organiza- 
tion both before and after 9/11 necessitated a military response. The US response 
then went on to rebut the Special Rapporteur's position that his mandate included 
issues arising under IHL/LOAC. In response to the Special Rapporteur's assertion 

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Use of Unmanned Systems to Combat Terrorism 



that all major Human Rights Council and UN General Assembly resolutions in re- 
cent years referred explicitly to IHL, the United States pointed out that the mention 
of IHL in these resolutions is in the context of suggestions or admonitions to gov- 
ernments and "does not . . . impart upon the Special Rapporteur a mandate to con- 
sider issues arising under" IHL/LOAC. 88 The US response similarly rejected the 
Special Rapporteur's argument that General Assembly Resolution 59/197 (2004) 
urged governments to take all necessary and possible measures, in conformity with 
IHRL and IHL, to prevent loss of life during armed conflicts. The United States 
pointed out that the Resolution did not expand or modify the mandate of the Spe- 
cial Rapporteur, but rather urged governments to take action, while directing the 
Special Rapporteur to continue to operate within his mandate. Finally, in response 
to the Special Rapporteur's assertion that "every single annual report of the Special 
Rapporteur since at least 1992 has dealt with violations of the right to life in the 
context of international and non-international armed conflicts," the United States 
noted that "while the Special Rapporteur may have reported on cases outside of his 
mandate, this does not give" him the competence to address such issues. 89 

Regarding the scope of the Special Rapporteur's mandate, it is also important 
to note that nothing in Commission on Human Rights Resolution 1982/29, which 
appointed the first Special Rapporteur to examine the questions related to sum- 
mary or arbitrary executions, empowers the Special Rapporteur to consider mat- 
ters involving armed conflict or IHL. 90 Similarly, nothing in General Assembly 
Resolution 60/251, which created the Human Rights Council as the replacement 
for the Commission on Human Rights, grants the Council competence over mat- 
ters regarding IHL in general, or armed conflict in particular. 91 Moreover, the 
Council is established as a subsidiary organ of the General Assembly; matters af- 
fecting international peace and security, aggression and the use of force in self- 
defense are under the cognizance of the Security Council, not the General 
Assembly. 

3. Obama Administration's Position 

As evidenced by the Koh speech, the current administration's position on the legal- 
ity of using UAS to target al-Qaeda operatives in areas like the FATA parallels that 
of the previous administration: 

[I]n all of our operations involving the use of force, including those in the armed con- 
flict with al-Qaeda, the Taliban and associated forces, the Obama Administration is 
committed ... to conducting ourselves in accordance with all applicable law. With re- 
spect to the subject of targeting, . . . it is the considered view of this Administration — and 
it has certainly been my experience during my time as Legal Adviser — that US targeting 



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Raul A. "Pete" Pedrozo 



practices, including lethal operations conducted with the use of unmanned aerial vehicles, 
comply with all applicable law, including the laws of war. . . . 

[A]s a matter of international law, the United States is in an armed conflict with al- 
Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 at- 
tacks, and may use force consistent with its inherent right to self-defense under inter- 
national law. As a matter of domestic law, Congress authorized the use of all necessary 
and appropriate force through the 2001 Authorization for Use of Military Force 
(AUMF). These domestic and international legal authorities continue to this day 

[A]l-Qaeda has not abandoned its intent to attack the United States, and indeed 
continues to attack us. Thus, in this ongoing armed conflict, the United States has the 
authority under international law, and the responsibility to its citizens, to use force, 
including lethal force, to defend itself, including by targeting persons such as high-level 
al-Qaeda leaders who are planning attacks [T]his is a conflict with an organized ter- 
rorist enemy that . . . plans and executes its attacks against us and our allies while hiding 
among civilian populations. That behavior . . . makes the application of international 

law more difficult and more critical for the protection of innocent civilians [T]his 

Administration has carefully reviewed the rules governing targeting operations to ensure 
that these operations are conducted consistently with law of war principles, includ- 
ing . . . the principle of distinction . . . and . . . the principle of proportionality In U.S. 

operations against al-Qaeda and its associated forces — including lethal operations 
conducted with the use of unmanned aerial vehicles — great care is taken to adhere to 
these principles in both planning and execution, to ensure that only legitimate objec- 
tives are targeted and that collateral damage is kept to a minimum. . . . 

[individuals who are part of such an armed group are belligerents and, therefore, law- 
ful targets under international law [S]ome have argued that the use of lethal force 

against specific individuals fails to provide adequate process and thus constitutes un- 
lawful extrajudicial killing. But a state that is engaged in an armed conflict or in legiti- 
mate self-defense is not required to provide targets with legal process before the state 

may use lethal force [S]ome have [also] argued that our targeting practices violate 

domestic law, in particular, the long-standing domestic ban on assassinations. But under 
domestic law, the use of lawful weapons systems — consistent with the applicable laws 
of war — for precision targeting of specific high-level belligerent leaders when acting in 
self-defense or during an armed conflict is not unlawful, and hence does not constitute 
"assassination." 92 

C. Application of IHL v. IHRL in the War on Terrorism 

As discussed above, human rights advocates argue that targeting decisions in the 
war on terrorism are governed by both IHL and IHRL. The US government, on the 
other hand, has correctly taken the position that the targeting of enemy 
belligerents, including al-Qaeda terrorists outside the traditional combat zone, 
is governed solely by IHL. In short, enemy belligerents, whether members of the 

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Use of Unmanned Systems to Combat Terrorism 



armed forces of a nation, terrorists or other civilians directly participating in 
hostilities, do not enjoy a "right to life" during an armed conflict, irrespective of 
their location. 

1. Are IHL and IHRL Complementary Regimes? 

Proponents of the assassination/extrajudicial killing argument take the position 
that al-Qaeda terrorists are criminals to whom law enforcement rules and IHRL, 
not major military force and IHL, apply. Military force, they argue, may only be 
used in self-defense or as authorized by the UN Security Council. They argue that 
outside of these situations, States may only use law enforcement measures to com- 
bat terrorists, 93 and that drones are warflghting weapons, not law enforcement 
tools, and may, therefore, not be used to target terrorists outside the traditional 
combat zone. 94 Rather, law enforcement rules, such as the UN Basic Principles on 
the Use of Force and Firearms by Law Enforcement Officials (UN Basic Princi- 
ples), govern when police can use force against civilians, including terrorists. They 
include such provisions as: 

4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply 
non-violent means before resorting to the use of force and firearms. They may use 
force and firearms only if other means remain ineffective or without any promise of 
achieving the intended result. 



9. Law enforcement officials shall not use firearms against persons except in self- 
defence or defence of others against the imminent threat of death or serious injury, to 
prevent the perpetration of a particularly serious crime involving grave threat to life, to 
arrest a person presenting such a danger and resisting their authority, or to prevent his 
or her escape, and only when less extreme means are insufficient to achieve these ob- 
jectives. In any event, intentional lethal use of firearms may only be made when strictly 
unavoidable in order to protect life. 95 

The proponents of IHRL applicability to the targeting of terrorists also cite the 
International Court of Justice (ICJ) Nuclear Weapons and Wall advisory opinions 
to support their position. In discussing the right to life in paragraph 25 of the 
Nuclear Weapons opinion, the ICJ stated that 

[t]he protection of the International Covenant on Civil and Political Rights does not 
cease in times of war, except by operation of Article 4 of the Covenant whereby certain 
provisions may be derogated from in a time of national emergency. Respect for the 
right to life is not, however, such a provision. In principle, the right not arbitrarily to be 

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Raul A. "Pete" Pedrozo 



deprived of [one's] life applies also in hostilities. The test of what is an arbitrary depri- 
vation of life, however, then falls to be determined by the applicable lex specialise 
namely, the law applicable in armed conflict which is designed to regulate the conduct 
of hostilities. Thus whether a particular loss of life, through the use of a certain weapon 
in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the 
Covenant can only be decided by reference to the law applicable in armed conflict and 
not deduced from the terms of the Covenant itself. 96 

Similarly, in the Wall opinion, the Court indicated in paragraph 106 that 

the protection offered by human rights conventions does not cease in case of armed 
conflict, save through the effect of provisions for derogation of the kind to be found in 
Article 4 of the International Covenant on Civil and Political Rights. As regards the re- 
lationship between international humanitarian law and human rights law, there are 
thus three possible situations: some rights may be exclusively matters of international 
humanitarian law; others may be exclusively matters of human rights law, yet others 
may be matters of both these branches of international law. In order to answer the 
question put to it, the Court will have to take into consideration both these branches of 
international law, namely human rights law and, as lex specialis, international humani- 
tarian law. 9 ' 

2. Targeting of Enemy Belligerents Is Governed by IHL 

Arguments advanced by proponents of the complementary IHL/IHRL model are 
misplaced from both a practical and a legal point of view. Human rights advocates 
would argue that US forces must first attempt to capture a suspected terrorist or 
provide him/her an opportunity to surrender before using lethal force. 95 From a 
practical perspective, such a suggestion borders on the ridiculous. These terrorists 
are hiding and operating in camps and strongholds located in some of the most 
remote and inaccessible areas in the world — in the FATA, Yemen, Somalia and else- 
where. Any attempt by US Special Forces to capture these terrorists would be virtu- 
ally impossible to undertake — and likely suicidal. Moreover, what human rights 
advocates are suggesting is a retrospective approach to combating terrorism — 
capture and prosecute the terrorists, hopefully before and not after another 9/11 
attack occurs. Such an approach is wishful iiiinking, at best. 

A prospective approach — preventing attacks before thev are planned and suc- 
cessfully executed — is necessary to protect the United States and its citizens against 
the real and continuing threat from al-Qaeda and its supporters. " There is simply 
no obligation in domestic or international law to provide due process (e.g., judicial 
review, offer to surrender, attempted capture, etc.) before using lethal force against 
known enemy belligerents, including terrorists, who present an imminent and 
continuing threat to the United States and its citizens. The Convention for the 



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Use of Unmanned Systems to Combat Terrorism 



Protection of Human Rights and Fundamental Freedoms (European Convention) 
recognizes that there is no "right to life" during armed conflict, by providing in 
Article 15.2 that "deaths resulting from lawful acts of war" are outside the scope of 
the Convention. 100 

Reliance on the ICJ advisory opinions to support the position that IHRL applies 
to the targeting of al-Qaeda and other terrorists is also misplaced. The focus of the 
Nuclear Weapons opinion was not on the targeting of combatants, but rather on the 
catastrophic effects a nuclear weapon detonation would have on the civilian popu- 
lation. The Court questioned whether the use of nuclear weapons could discrimi- 
nate between the civilian population and combatants and civilian objects and 
military objectives, indicating that the number of casualties that would ensue fol- 
lowing the use of such a weapon would be enormous. 101 UAS, with their enhanced 
ISR and precision targeting capabilities, can easily distinguish between military 
targets and protected people and places. Moreover, although there have been inci- 
dental civilian deaths associated with the use of drones, the numbers (as discussed 
below in the sections on proportionality and military necessity) are not excessive in 
terms of the military advantage that has been achieved, and would certainly not fall 
within the scope of casualties envisioned by the use of a nuclear weapon. Had the 
Court been asked, "Does an enemy combatant or civilian directly participating in 
hostilities have a 'right to life' during an armed conflict?" the Court would have 
said no. It is also important to note that, other than the reference to human rights 
in dicta in paragraphs 24 and 25, the Court applies IHL, not IHRL, in its analysis of 
the issues (paragraphs 74-96). Nor does the Court cite any authority for its novel 
declaration that IHRL applies during an armed conflict. Finally, in issuing its deci- 
sions, the Court relies on IHL, not IHRL, stating: 

D. Unanimously, 

A threat or use of nuclear weapons should also be compatible with the requirements of 
the international law applicable in armed conflict, particularly those of the principles 
and rules of international humanitarian law, as well as with specific obligations under 
treaties and other undertakings which expressly deal with nuclear weapons; 

E. By seven votes to seven, by the President's casting vote, 

It follows from the above-mentioned requirements that the threat or use of nuclear 
weapons would generally be contrary to the rules of international law applicable in 
armed conflict, and in particular the principles and rules of humanitarian law; 



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Raul A. "Pete" Pedrozo 



However, in view of the current state of international law, and of the elements of fact at 
its disposal, the Court cannot conclude definitively whether the threat or use of nuclear 
weapons would be lawful or unlawful in an extreme circumstance of self-defence, in 
which the very survival of a State would be at stake. 102 

Similarly, the Wall advisory opinion focused on an occupation setting. It did not 
address the issue of targeting enemy combatants or civilians directly participating 
in hostilities. In fact, the Court recognizes in paragraph 106 that there are situa- 
tions in which only IHL applies: 

As regards the relationship between international humanitarian law and human rights 
law, there are thus three possible situations: some rights may he exclusively matters of in- 
ternational humanitarian law; others may be exclusively matters of human rights law; 
yet others may be matters of both these branches of international law (emphasis 
added). 

Clearly, targeting of enemy combatants and civilians directly participating in hos- 
tilities falls into the first category — exclusively matters of IHL. Additionally, as was 
the case in the Nuclear Weapons opinion, the Court relies on IHL, not IHRL, in de- 
ciding the case: 

For these reasons, 

The Court . . . [decided] 

D. By [a vote of] thirteen votes to two, [that] 

[a] 11 States are under an obligation not to recognize the illegal situation resulting from 
the construction of the wall and not to render aid or assistance in maintaining the situ- 
ation created by such construction; all States parties to the Fourth Geneva Convention 
relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in 
addition the obligation, while respecting the United Nations Charter and international 
law, to ensure compliance by Israel with international humanitarian law as embodied 
in that Convention. 103 

Finally, some opponents to the use of drones have suggested that the rules 
should be different if the suspected terrorist is a US citizen. The fact that the in- 
tended target of a drone strike is an American citizen, such as radical cleric Anwar 
al-Awlaki who is hiding in Yemen, does not change the analysis. The citizenship of 
the belligerent is irrelevant in the targeting decision. In an al-Qaeda video posted 
on the Internet on May 23, 2010, al-Awlaki advocates the killing of American 



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Use of Unmanned Systems to Combat Terrorism 



civilians in retaliation for the death of Iraqi and Afghan civilians killed by US 
forces. 104 Americans do not have a right to wage war against the United States. If 
they do, they become lawful targets and may be engaged without "due process." 
The Supreme Court held in Ex parte Quirin that US citizenship did not bar the 
prosecution of individuals as "enemies who have violated the law of war." 105 The 
same logic would allow the direct engagement of a US citizen who has actively 
sided with al-Qaeda. 106 

3. Does It Really Matter IflHRL Applies in an Armed Conflict? 
Even if IHRL complemented IHL during periods of armed conflict, use of drones 
to conduct strikes against terrorists outside the combat zone in self-defense would 
not constitute a violation of IHRL. Although the ICJ indicated in the Nuclear 
Weapons advisory opinion that the right to life found in Article 6.1 of the Interna- 
tional Covenant on Civil and Political Rights (ICCPR) applies in times of war, the 
Court went on to explain that 

[t]he test of what is an arbitrary deprivation of life, however, then falls to be determined 
by the applicable lex specialise namely, the law applicable in armed conflict which is 
designed to regulate the conduct of hostilities. Thus whether a particular loss of life, 
through the use of a certain weapon in warfare, is to be considered an arbitrary depriva- 
tion of life contrary to Article 6 of the Covenant can only be decided by reference to the 
law applicable in armed conflict and not deduced from the terms of the Covenant 
itself. 107 

Under IHL, enemy belligerents, like the al-Qaeda terrorists, who have not surren- 
dered and are not hors de combat may be lawfully engaged at all times, subject only 
to the principles of military necessity and proportionality. Such attacks would not 
constitute an arbitrary deprivation of life under the ICCPR. 108 

It is also questionable whether the ICCPR would even apply to targeted killings 
in Pakistan and other places outside the traditional combat zone. Article 2.1 pro- 
vides that "[e]ach State Party . . . undertakes to respect and to ensure to all individ- 
uals within its territory and subject to its jurisdiction the rights recognized in the 
present Covenant" (emphasis added). The ICJ similarly held in paragraph 1 1 1 of 
the Wall advisory opinion that the ICCPR is only "applicable in respect of acts done 
by a State in the exercise of its jurisdiction outside its own territory" (e.g., in an oc- 
cupation situation). The question of applicability of the Covenant therefore turns 
on whether the terrorist being targeted "is within the jurisdiction, actual power, or 
effective control of the state using the drone." 109 Al-Qaeda terrorists and their sup- 
porters operating out of the FATA, Yemen or Somalia are not within the territorial 



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Raul A. "Pete" Pedrozo 



jurisdiction of the United States nor are these individuals within the actual power 
or control of the United States. In these circumstances, the ICCPR does not apply. 

4. So What Are Human Rights Advocates Really After? 

From the foregoing, it appears that there is nothing to gain by applying IHRL in an 
armed conflict scenario. In fact, application of the IHRL "arbitrary deprivation of 
life" standard would arguably provide far less protection than the IHL principles of 
military necessity and proportionality. So what are human rights advocates really 
trying to accomplish by arguing that IHRL applies in armed conflicts? The answer 
is simple: change the outcomes governed by IHL by adding IHRL into the equa- 
tion, thereby making IHL more restrictive and channeling the enforcement of IHL 
through human rights mechanisms such as the Human Rights Council and re- 
gional human rights courts. To quote a human rights advocate: 

We wish to (boldly) take human rights to places, be they extraterritorial situations, or 
those of armed conflict, where, as a matter of practical reality, no human rights have 
gone before. ... [A] purpose of the IHL/IHRL project is the enforcement of IHL 
through human rights mechanisms. Thus, even if human rights substantively added 
nothing to IHL, there would still be a point in regarding IHL and IHRL as two comple- 
mentary bodies of law. IHL, now (jurisdictionally) framed in human rights terms, 
could be enforced before political bodies, such as the Human Rights Council or UN 
political organs more generally, or through judicial and quasi- judicial mechanisms, 
such as the International Court of Justice, the European Court of Human Rights, the 
UN treaty bodies or domestic courts. 110 

The danger of allowing human rights mechanisms to review lawful military op- 
erations, whether in a traditional armed conflict or in the war on terrorism, is illus- 
trated by the absurd decision of the European Court of Human Rights in the 
McCann case. 111 The British government had information that three known IRA 
terrorists were going to conduct a terrorist attack in Gibraltar by detonating a car 
bomb by remote control. While several UK soldiers were following them, it ap- 
peared that the terrorists were preparing for an attack. As one of the soldiers moved 
forward to arrest the suspects, he observed one of the terrorists move his hand as if 
he was about to press a button to detonate the bomb, and shot the suspect. A sec- 
ond terrorist then appeared as if she was going to donate the bomb and was shot. 
The third terrorist was also shot. A bomb was subsequently discovered in the car. 
After hearing seventy-nine witnesses, a jury in the United Kingdom brought back a 
verdict of lawful killing. Dissatisfied by that result, the decedents' estates brought 
the case to the European Court of Human Rights. Despite finding that "the soldiers 
honestly believed . . . that it was necessary to shoot the suspects in order to prevent 



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Use of Unmanned Systems to Combat Terrorism 



them from detonating a bomb and causing serious loss of life," the Court neverthe- 
less found by a vote often to nine that there had been a violation of Article 2 of the 
European Convention because the UK authorities had not taken "appropriate care 
in the control and organisation of the arrest operation." Article 2.2 of the Conven- 
tion provides that "deprivation of life shall not be regarded as inflicted in contra- 
vention of this article when it results from the use of force which is no more than 
absolutely necessary: (a) in defence of any person from unlawful violence " 112 

A second example of this dangerous approach is the continuing efforts by Philip 
Alston, the current Special Rapporteur, to obtain information (much of which is 
classified) on the use of UAS to target terrorists in the FATA and other areas out- 
side Afghanistan and Iraq. In May 2010, Mr. Alston called on the United States to 
stop using CIA operatives to conduct drone strikes against al-Qaeda terrorists. 113 
In a report delivered to the Human Right Council on May 28, Alston argues that 
"intelligence agents do not generally operate within a framework which places ap- 
propriate emphasis upon ensuring compliance with IHL, rendering violations 
more likely." 114 Alston's report also questions the validity of a portion of the Inter- 
national Committee of the Red Cross's (ICRC's) Interpretive Guidance on the No- 
tion of Direct Participation in Hostilities under International Humanitarian Law that 
allows for the targeting of civilians who are members of an armed group who have a 
continuous combat function (CCF). According to the report, the "ICRC's Guid- 
ance raises concern from a human rights perspective" because the CCF category of 
armed group members may be targeted anywhere, any time. The report concludes 
that "the creation of CCF category is, de facto, a status determination that is ques- 
tionable given the specific treaty language that limits direct participation to 'for 
such time' as opposed to 'all the time.'" 115 The report therefore recommends, inter 
alia, that "[t]he High Commissioner for Human Rights should convene a meeting 
of States, including representatives of key military powers, the ICRC and human 
rights and IHL experts to arrive at a broadly accepted definition of 'direct partici- 
pation in hostilities.'" 116 It would appear from this report that Mr. Alston believes 
that the Special Rapporteur and human rights organizations like the Human 
Rights Council are more qualified than the ICRC and States parties to the Geneva 
Conventions to decide IHL issues of this nature. I would suggest that determining 
whether a civilian has directly participated in hostilities under the Geneva Conven- 
tions and may therefore be targeted by belligerent forces is clearly outside the man- 
date of the Special Rapporteur contained in Resolution 8/3 of the Human Rights 
Council and further demonstrates the overreaching by human rights advocates 
and organizations. 117 

In short, the United States has nothing to gain by acknowledging that IHRL ap- 
plies alongside IHL in armed conflict situations, particularly in the targeting 

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Raul A. "Pete" Pedrozo 



process. Human rights groups, whether non-governmental or governmental, are 
generally biased against military operations conducted by any state and military 
operations conducted by the United States, in particular. They (and their financial 
supporters) generally oppose a strong military establishment, seek to level the play- 
ing field between modern armed forces and insurgent groups/terrorists and en- 
deavor to create a standard of zero collateral damage and incidental injury in war. 
Any report or decision issued by these organizations would inevitably be critical of 
US operations and would provide yet another source of information that can be ex- 
ploited by our enemies. 

IV. Host Nation Consent v. Self-Help in Self-Defense 

Following setbacks in Iraq and Afghanistan, al-Qaeda has been able to reconstitute 
and establish bases of operation in the FATA, which have served as a "staging area for 
al-Qaeda attacks in Afghanistan," as well as a base for its worldwide training opera- 
tions. 118 In fact, most of the high-priority terrorists, who continue to actively plot 
against the United States, remain in hiding in some of the most remote, inaccessi- 
ble parts of the world, including the FATA. 119 To date, Pakistan has been unable or 
unwilling to prevent cross-border attacks against coalition forces in Afghanistan or 
to disrupt terrorist planning and training efforts to conduct attacks against the 
United States and its allies worldwide. That leaves the United States with two 
options — wait for another terrorist attack or use UAS to conduct strikes against 
these inaccessible targets. 

A. Host Nation Consent 

Opponents to the use of UAS to strike targets in nations outside the combat zone 
argue that host nation consent is required for such attacks, "unless the state where 
the group is present is responsible for their actions." 120 Although there is some evi- 
dence that senior leadership within Pakistan tacitly consented to the drone strikes 
by providing bases for UAS operations and targeting information to US forces and 
the CIA, Pakistan has not officially consented to the attacks and has often publicly 
protested the strikes as a violation of its sovereignty and territorial integrity. 121 
Accordingly, the opponents to the use of UAS argue that there is no legal basis for 
the United States to attack terrorist targets in Pakistan or in any other nation out- 
side of the combat zone. 

B. Sovereignty v. Inherent Right of Self-Defense 

The opponents' position appears to be premised on the flawed assumption that 
territorial integrity and State sovereignty are paramount in international law. The 

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Use of Unmanned Systems to Combat Terrorism 



long-standing view of the United States on the issue of sovereignty, as articulated 
by a former legal adviser to the US Department of State and a leading international 
law scholar, is that "[territorial integrity is not entitled to absolute deference in in- 
ternational law, and our national defense requires that we claim the right to act 
within the territory of other States in appropriate circumstances." 122 President 
Obama reaffirmed this long-standing position in an address at West Point in 2009, 
indicating that the United States "cannot tolerate a safe-haven for terrorists whose 
location is known, and whose intentions are clear." 123 The US position is supported 
by Articles 2(4) and 51 of the Charter, which make clear that territorial integrity 
and sovereignty give way to the right of self-defense. 

C. Self-Help 

It is equally well settled that States have an obligation under international law "to 
control persons within their borders to ensure that they do not utilize their terri- 
tory as a base for criminal activity." 124 Both domestic courts and international tri- 
bunals have acknowledged this obligation. For instance, the US Supreme Court 
held in 1887 that "[t]he law of nations requires every national government to use 
'due diligence' to prevent a wrong being done within its own dominion to another 
nation with which it is at peace, or to the people thereof." 125 The ICJ has similarly 
held that every State has an "obligation not to allow knowingly its territory to be 
used for acts contrary to the rights of other States." 126 

It is equally well settled that, if a nation is unwilling or unable to stop terrorists 
or other armed groups from using its territory as a location from which to launch 
attacks against another nation or its citizens, the aggrieved State has the right to 
strike the terrorists or other armed groups within the territory of the host nation. 127 
The State Department Legal Adviser reiterated this right in his remarks at the ASIL 
meeting: 

[Wjhether a particular individual will be targeted in a particular location will depend 
upon considerations specific to each case, including those related to the imminence of 
the threat, the sovereignty of the other states involved, and the willingness and ability of 
those states to suppress the threat the target poses. 128 

Much of the FATA is inaccessible to Pakistani security forces. Additionally, the 
Pakistani army has been reluctant to conduct offensive military operations against 
militant groups in North Waziristan "because it does not want to antagonize 
powerful insurgent groups there that have so far attacked only targets in 
Afghanistan." 129 In short, Pakistan has been unable and unwilling to prevent use of 
its territory by al-Qaeda and other militant groups that continue to plan and 



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Raul A. "Pete" Pedrozo 



conduct terrorist attacks against the United States and its allies. Under these 
circumstances, the United States has the inherent right under international law to 
use force in self-defense against terrorist targets in Pakistan. 

D. A History of Self-Help 

Self-help is nothing new to the United States — our history is replete with examples 
of the use of necessary and proportionate force in self-defense where a "neutral" 
nation has been unable or unwilling to prevent the use of its territory as a staging 
base for attacks. Some examples include: 130 

• 1814, 1816 and 1818 Seminole Indian attacks. The United States used force 
in self-defense against attacks by Indians and former slaves emanating from Span- 
ish Florida without the consent of Spain. The attacks were not directed at Spain 
nor was the United States at war with Spain at the time. 

• 1817 Amelia Island occupation. The United States used force in self-defense 
to attack non-State actors (pirates, smugglers and privateers) on Amelia Island, 
relying, in part, on "Spain's inability to control misuse of its islands to prevent 
armed attacks on U.S. territory and shipping . . . emanating from the islands." At 
the time, the United States was not at war with Spain and assured Spain that the 
temporary occupation of Amelia Island was not a threat to its sovereignty. The US 
military actions were taken without Spanish consent. 

• 1837 Caroline incident. The Caroline case also provides an example of the 
use of force in self-defense against non-State actors without the consent of the 
host nation. The United Kingdom was not at war with the United States when it 
attacked the Caroline in US waters to prevent future insurgent attacks emanating 
from the United States into Canada. The attack was directed at the insurgents, not 
the United States, and was not viewed as an act of war by the US government. 

• 1854 Greytown bombardment. The US Navy bombarded the town of 
Greytown, Nicaragua after the citizens of the town forcibly took possession of the 
town, established their own government (not recognized by the United States), 
and attacked a US diplomat and engaged in other acts of violence against US na- 
tionals. In deciding whether the President had the power to order such an attack, 
Justice Nelson of the US Supreme Court held that the President had the authority 
to use force "as part of a power of protection of US nationals abroad against acts of 
lawless violence and an irresponsible and marauding community." The bombard- 
ment was conducted without the consent of Nicaragua. 

• 1916 Pancho Villa raids. In 1916, President Wilson authorized US forces to 
attack Pancho Villa's forces in Mexico after they had crossed into the United 



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Use of Unmanned Systems to Combat Terrorism 



States and attacked towns in Texas and New Mexico. A second incursion was au- 
thorized later that year when Mexican bandits attacked Glen Springs, Texas. 

• 1998 cruise-missile strikes. President Clinton authorized cruise-missile 
strikes against al-Qaeda training camps in Afghanistan without the consent of the 
Taliban government after al-Qaeda bombed the US embassies in Nairobi, Kenya 
and Dar es Salaam, Tanzania. The terrorist attacks killed more than 250 persons and 
injured over 5,500. The strikes were justified as self-defense in response to prior 
armed attacks and to prevent future attacks against the United States by al-Qaeda. 

As these examples illustrate, while a nation's sovereignty is an important factor 
that must be taken into consideration before conducting a cross-border strike, it 
does not take precedence over a right of self-defense where that nation has been 
unable or unwilling to prevent the use of its territory as a base of operations for 
attacks. Article 51 of the Charter also makes clear that sovereignty and territorial 
integrity give way to this inherent right of self-defense against an armed attack or 
imminent threat of armed attack. Pakistan has been unable (due to inaccessible 
terrain) or unwilling (due to political considerations) to prevent militant groups 
from using the FATA to plan and attack the United States and its allies. Under these 
circumstances, the United States is legally justified in using force in self-defense, 
including UAS strikes, to prevent future attacks from Pakistani territory. 

V. Do Drone Strikes Violate Traditional Principles oflHL/LOAC? 

Basic principles of IHL affect all phases of the targeting cycle. This is particularly 
true during the target development, validation, nomination and prioritization 
phase, as well as the mission planning and force execution phases. However, IHL 
recognizes that military forces cannot engage in hostilities without some degree of 
incidental injury to protected persons and collateral damage to protected objects. 
The key is the determination of how to minimize incidental injury to civilians and 
collateral damage to civilian objects consistent with mission accomplishment and 
the law. 

As a general rule, "the right of belligerents to adopt means of injuring the enemy 
is not unlimited." 131 Additionally, "[t]he civilian population as such, as well as indi- 
vidual civilians, shall not be the object of attack." 132 In this regard, when conduct- 
ing military operations, commanders must 

• do everything feasible to verify that the objectives to be attacked are neither civilians 
nor civilian objects . . . but are military objectives . . . ; 



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Raul A. "Pete" Pedrozo 



• take all feasible precautions in the choice of means and methods of attack with a view 
to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civil- 
ians and damage to civilian objects; [and] 

• refrain from deciding to launch any attack which may be expected to cause inciden- 
tal loss of civilian life, injury to civilians, damage to civilian objects . . . which would be 
excessive in relation to the concrete and direct military advantage anticipated. 133 

Commanders must also be prepared to cancel or suspend an attack 

if it becomes apparent that the objective is not a military one or is subject to special pro- 
tection or that the attack may be expected to cause incidental loss of civilian life, injury 
to civilians, or damage to civilian objects . . . which would be excessive in relation to the 
concrete and direct military advantage anticipated. 134 

Based on the foregoing, it is clear that incidental injury of civilians and collateral 
damage to civilian objects is not prohibited by IHL; what is prohibited is excessive 
injury or damage in relation to the military advantage expected to be gained by the 
use of force. In other words, the wanton destruction of life and property as an end 
in itself violates IHL, but the law does not prohibit the use of force, even over- 
whelming force, by a military commander to compel the complete submission of 
the enemy in order to protect the safety of his force and facilitate the success of his 
mission. 135 Therefore, attacks by UAS that unintentionally cause incidental 
injury to civilians or damage to civilian property, in addition to killing the intended 
targets, e.g., an insurgent leader, are fully consistent with IHL to the extent the in- 
jury or damage is not excessive when compared to the military advantage gained by 
the attacks. 

Compliance with IHL is much more complex in the current conflict with al- 
Qaeda because insurgent forces routinely commingle with the civilian population 
and operate from protected places. It becomes exceedingly more difficult to mini- 
mize incidental injury and collateral damage in such situations because of the diffi- 
culties encountered in distinguishing combatants from civilians and military 
objects from civilian objects. Under these circumstances, al-Qaeda and its support- 
ers must be held primarily responsible for any collateral damage and incidental in- 
jury in such cases because they have failed to comply with their obligation to "avoid 
locating military objectives within or near densely populated areas." 136 Addition- 
ally, one must consider whether the civilians are deliberately acting as voluntary 
human shields for the insurgent forces, in which case, they may be considered to be 
directly participating in hostilities and therefore subject to attack. 137 



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Use of Unmanned Systems to Combat Terrorism 



A. Military Necessity 

The purpose of IHL is to ensure that hostilities are directed toward the enemy and 
not used to cause unnecessary human suffering and physical destruction. The 
principle of military necessity limits suffering and destruction to that which is nec- 
essary to achieve a valid military objective. When applying this principle, the com- 
mander should ask whether the object of attack is a valid military objective and, if 
so, whether the total or partial destruction, capture or neutralization of the object 
will constitute a definite military advantage under the circumstances existing at the 
time of the attack. This does not mean, however, that overwhelming force cannot 
be used to destroy a valid military objective if consistent with the principles of dis- 
tinction and proportionality discussed below. 138 

Opponents to the use of UAS to conduct strikes outside the traditional combat 
zone argue that drone attacks violate the principle of military necessity because 
they fuel anti- Americanism in the FATA and do little to weaken the al-Qaeda orga- 
nization. 139 Opponents argue that killing innocent civilians invites retaliation and 
aids al-Qaeda recruitment efforts in the FATA and elsewhere by antagonizing the 
local population, alienating surviving family members and creating martyrs. 140 
The opponents point to statements by some Pakistani military officers who have 
confirmed that drone strikes motivate local tribesmen in the FATA to fight against 
the Pakistani government because the attacks are viewed as a breach of Pakistan's 
sovereignty. 141 It is therefore argued that, if the military objective of defeating al- 
Qaeda cannot be achieved because drone strikes do not weaken the terrorist orga- 
nization as intended, but rather have had unforeseen consequences of fueling anti- 
American sentiments and assisting al-Qaeda's recruitment efforts, the attacks vio- 
late the principle of military necessity. 142 

These arguments, which are not supported by independent studies, are based on 
exaggerated civilian casualty figures. They also fail to acknowledge that, in the past 
two years alone, UAS strikes have killed over 500 militants, including 39 top-tier 
and mid-to-high-level leaders, thereby disrupting al-Qaeda's ability to operate 
with impunity from the FATA. 143 An independent study by the New America 
Foundation puts the number of militants killed at between 618 and 966. 144 More 
important, since December 2009, the terrorist organization has been dealt a num- 
ber of serious blows by successful drone attacks against several high-ranking al- 
Qaeda officials. In December, Saleh al-Somali, a senior planner responsible for al- 
Qaeda operations outside Afghanistan and Pakistan, was killed by a drone strike in 
northern Waziristan. 145 Al-Qaeda operations were dealt further crippling blows in 
April 2010 and May 2010 with the deaths of the two top al-Qaeda leaders in Iraq, 
Abu Ayyub al-Masri and Abu Umar al-Baghdadi, and the death of the number-three 
official in the organization and overall commander for al-Qaeda in Afghanistan, 

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Raul A. "Pete" Pedrozo 



Mustafa Abu al-Yazid. 146 Equally important, drone strikes have effectively im- 
paired al-Qaeda operations by creating an "atmosphere of fear and distrust among 
members" of the organization, with reports indicating that militant leaders sleep 
outside of their homes for fear of being targeted by a drone and suspected spies are 
routinely executed for providing information to the United States. 147 

Independent studies by the New America Foundation and the Aryana Institute 
for Regional Research and Advocacy (AIRRA), as well as Reuters reporting, also 
do not support the allegations that civilian casualties in the FATA are fueling 
anti-American sentiments and assisting al-Qaeda recruiting efforts. First, despite 
claims to the contrary, there have been no major public protests in the FATA 
against the use of drones. Moreover, the number of civilian casualties in the 
FATA is much lower than the numbers claimed by militant groups and opponents 
to the use of drones in Pakistan. The New America Foundation study shows that 
the 131 reported drone strikes in the FATA since 2004 "have killed approximately 
between 908 to 1,347 individuals, of whom around 618 to 966 were described as 
militants in reliable press accounts"; thus less than 30 percent of the total casual- 
ties were civilians. 148 

The AIRRA study also concluded that anti-Americanism in the FATA has not 
increased significantly due to US drone attacks. 149 Between November 2009 and 
January 2010, AIRRA sent five teams of five researchers each to conduct a public 
opinion survey about UAS attacks in areas of the FATA most often targeted by US 
drones. The following are the questions posed by the survey teams and the re- 
sponses of the people of the FATA: 

• Do you see drone attacks bringing about fear and terror in the common people? (Yes 
45%, No 55%) 

• Do you think the drones are accurate in their strikes? (Yes 52%, No 48%) 

• Do you think anti- American feelings in the area increased due to drone attacks re- 
cently? (Yes 42%, No 58%) 

• Should Pakistan military carry out targeted strikes at the militant organisations? 
(Yes 70%, No 30%) 

• Do the militant organisations get damaged due to drone attacks? (Yes 60%, No 
40%) 

Local residents were also asked questions concerning sovereignty and civilian 
casualties. Regarding territorial integrity, people were asked if US drone attacks on 



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the FATA were viewed by the local population as a violation of Pakistani sovereignty. 
More than two-thirds said they were not. "Pakistan's sovereignty, they argued, was 
insulted and annihilated by Al-Qaeda and the Taliban, whose territory FATA is af- 
ter Pakistan lost it to them. The US is violating the sovereignty of the Taliban and 
Al-Qaeda, not of Pakistan." 150 Moreover, more than two-thirds of the people inter- 
viewed consider "Al-Qaeda and the Taliban as enemy number one" and a large 
majority (nearly two-thirds) want the United States "to continue the drone attacks 
because the Pakistani army is unable or unwilling to retake the territory from the 
Taliban." 151 Although there was some concern over civilian casualties and collateral 
damage, most of the people interviewed indicated that most of the drone attacks 
hit their intended targets. In fact, they indicated that most of the collateral damage 
is to houses rented to the militants. Additionally, local residents indicated that the 
Taliban and al-Qaeda terrorists normally seal off the area after a drone attack in 
order to remove everything, including militant casualties, from the site before al- 
lowing locals to return to their homes. As a result, an accurate battle damage assess- 
ment is not possible. In short, the AIRRA study contradicts the assertion of the 
impact of civilian casualties on anti- Americanism and "the mantra of violation of 
the sovereignty of Pakistan perpetuated by the armchair analysts in the media." 152 

The results of the AIRRA study were subsequently confirmed by a Reuters spe- 
cial report. In a May 2010 interview, a tribal elder from the FATA told a Reuters re- 
porter that the residents of northern Waziristan "want to get rid of the Taliban and 
if the Pakistani army cannot do it now, then . . . drone attacks . . . [are] fine with 
them." 153 He further indicated that " [t]here is no anger against the strikes as long as 
civilians are safe" and that "[t]here have been civilian deaths but not in big num- 
bers." 154 A second tribal leader indicated: "We prefer drone strikes than army oper- 
ations because in such operations, we also suffer. But drones hit militants and it is 
good for us." 155 Based on these independent reports and surveys, allegations that 
drone strikes violate the principle of military necessity are clearly misplaced. 

B. Proportionality 

The principle of proportionality is concerned with weighing the military advantage 
one expects to gain by an attack against the unavoidable and incidental harm to civil- 
ians and damage to civilian property that will result from the attack. This principle 
requires the commander to determine whether incidental injury to civilians and 
damage to civilian objects that may result from the attack will be excessive in rela- 
tion to the concrete and direct military advantage expected to be gained. 156 

Opponents to the use of drones outside the traditional combat zone also argue 
that killing a large number of civilians in an attempt to kill one terrorist leader vio- 
lates the principle of proportionality. 157 This argument is based on alleged civilian 

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Raul A. "Pete" Pedrozo 



casualty rates of fifty innocent civilians killed to each militant targeted — " [a] t a ra- 
tio of 50 to 1, the disproportionate impact of drone attacks in Pakistan represents a 
serious violation of the traditional rules of war." 158 

The opponents' position that UAS cause unnecessary and disproportionate 
harm to the civilian population is flawed for a number of reasons. First, as indi- 
cated above, the number of actual civilians killed by UAS strikes in Pakistan is sig- 
nificantly lower than the numbers reported by the opponents to the use of drones. 
The New America Foundation study shows innocent civilian casualties caused by 
drone strikes at around 30 percent. 159 These figures have been confirmed by a se- 
nior Pakistani military officer who indicated that "he believed that a third of the 
dead were militants, a third sympathizers and a third innocent civilians/' 160 And 
some US and Pakistani intelligence estimates put the number of non-combatant 
civilian casualties — primarily family members who live and travel with targeted 
militants — as low as 5 and 20 percent, respectively. 161 Second, the opponents' ar- 
gument incorrectly assumes that the principle of proportionality requires a com- 
parison between the number of innocent civilians killed or wounded and the 
number of terrorists killed or wounded. Rather, what the proportionality principle 
actually requires is a balancing of incidental injury to civilians and collateral dam- 
age to civilian property against the military advantage expected to be gained by the 
attack, as determined by the military commander — not by the ICRC, Human Right 
Council, Human Rights Watch or the Special Rapporteur. The commander's deci- 
sion is based on validated, real-time, reliable intelligence; target evaluation in light 
of the campaign plan (e.g., top-tier, high-level, mid-level leader or low-level opera- 
tive); presence of civilians at the target and their statuses (e.g., voluntary or invol- 
untary human shields, women and children); location of the target (e.g., protected 
place, civilian object, safe house, terrorist training camp); and his or her experience 
as a commander. Each target is carefully scrutinized and analyzed through a com- 
plex targeting approval process which considers all of these factors in light of the 
most recent real-time intelligence. 

C. Distinction 

The principle of distinction is concerned with distinguishing combatants from 
civilians and military objects from civilian objects so as to minimize harm to civil- 
ians and damage to civilian property. 162 To achieve this result, military command- 
ers have a duty to distinguish their forces from the civilian population (e.g., 
through the wearing of uniforms or other distinctive signs) and distinguish valid 
military objectives from civilians or civilian objects before attacking. 163 

Opponents of the use of drones argue that, even if a US drone operator is 
reasonably certain that the intended target is a valid military objective (e.g., an 

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Use of Unmanned Systems to Combat Terrorism 



al-Qaeda terrorist), he or she is still obligated to minimize civilian injuries. 
Because suspected terrorists wear civilian clothes and commingle with the local 
population, they cannot be clearly distinguished from the innocent civilians, even 
by high-tech drones. Citing Article 50(1) of Additional Protocol I (AP I), which 
provides that "in case of doubt whether a person is a civilian, that person shall be 
considered to be a civilian," opponents to the use of drones argue that if there is 
any uncertainty as to whether or not a person is a suspected militant (because he 
is wearing civilian clothes or has commingled with the civilian population, etc.), 
IHL presumes that the person is a protected civilian. 164 

Such a position rewards terrorists for violating the very laws that opponents to 
the use of drones seek to use to protect them from attack. Moreover, it encourages 
further violations by the militants, thereby increasing the danger to the civilian 
population. It also ignores the enhanced precision and restraint drones bring to the 
targeting process as compared to a pilot with limited information in the cockpit or 
the commander of a long-range artillery battery. 165 Improved ISR capabilities, 
"lack of fear-induced haste, reduced anger levels" and clearer battle damage assess- 
ments all combine to enhance awareness of protected persons and objects in the 
target area and restraint on the part of drone operators to engage such persons or 
objects. 166 More important, the opponents' position ignores basic rules of IHL that 
prohibit belligerents from using protected persons and protected objects to render 
certain areas, objects or belligerent forces immune from attack. 167 In this regard, 
Article 51(7) of AP I provides that "[t]he Parties to the conflict shall not direct the 
movement of the civilian population or individual civilians in order to attempt to 
shield military objectives from attacks or to shield military operations." Article 
58(b) additionally provides that "[t]he Parties to the conflict shall, to the maxi- 
mum extent feasible!,] . . . avoid locating military objectives within or near densely 
populated areas." Militants violate these principles on a daily basis by commin- 
gling with the civilian population and enlisting the voluntary and involuntary aid 
of human shields to enhance their operations and mobilize public opinion against 
the United States when UAS strikes cause incidental injury or collateral damage. 
They store their ammunition in mosques, place weapons on top of schools and 
hospitals, use ambulances to deliver suicide bombs and set up command and con- 
trol centers in private homes, and then exploit the resulting injury or damage when 
these protected places or objects are attacked. 168 

Even though UAS are among the most precise weapons in the US inventory to- 
day, incidental injury to innocent civilians and collateral damage to civilian prop- 
erty is inevitable, particularly in light of the manner in which terrorists fight and 
operate. The State Department Legal Adviser highlighted this fact in his remarks: 



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Raul A. "Pete" Pedrozo 



[T] his is a conflict with an organized terrorist enemy that does not have conventional 
forces, but that plans and executes its attacks against us and our allies while hiding 
among civilian populations. That behavior . . . makes the application of international 
law more difficult and more critical for the protection of innocent civilians. 169 

Although these repeated IHL violations do not relieve the United States of its obli- 
gation under the law to take all feasible precautions to minimize incidental loss of 
civilian life and damage to civilian objects, the terrorists' actions must be taken into 
consideration when determining the legality and proportionality of an attack 
against militants who have taken refuge in the civilian population and engaged in 
hostilities from protected places. 170 

D. US Adherence to IHL in the Targeting Process 

The Obama administration (as well as the previous administration) has continued 
to adhere to basic principles of IHL when targeting al-Qaeda terrorists outside the 
traditional combat zone. Koh emphasized that administration officials have 

carefully reviewed the rules governing targeting operations to ensure that these opera- 
tions are conducted consistently with law of war principles, including: . . . the principle 
of distinction, which requires that attacks be limited to military objectives and that civil- 
ians and civilian objects shall not be the object of the attack; and . . . the principle of pro- 
portionality, which prohibits attacks that may be expected to cause incidental loss of 
civilian life, injury to civilians, damage to civilian objects, or a combination thereof, 
that would be excessive in relation to the concrete and direct military advantage antici- 
pated. In U.S. operations against al-Qaeda and its associated forces — including lethal 
operations conducted with the use of unmanned aerial vehicles — great care is taken to 
adhere to these principles in both planning and execution, to ensure that only legiti- 
mate objectives are targeted and that collateral damage is kept to a minimum. 171 

In short, drone attacks are being conducted in accordance with US obligations un- 
der IHL. 

VI. Use of Civilian UAS Operators to Target Terrorists 

Today, more than ever, civilian contractors are increasingly being utilized to sup- 
port combat forces across the entire spectrum of military operations, to include in- 
telligence, planning, technical support, logistics and communications support 
functions. Civilian contractors play critical roles as analysts, trainers, computer 
programmers and maintenance technicians for high-tech unmanned systems. The 
1907 Hague Regulations and the 1949 Third Geneva Convention both recognize 
that civilians will support and accompany the armed forces in times of armed 



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Use of Unmanned Systems to Combat Terrorism 



conflict. 172 AP I, Article 50 further recognizes that these individuals, notwithstand- 
ing their affiliation with the armed forces, are still considered to be "civilians" for 
purposes of targeting and Article 51 specifies that civilians "shall not be the object 
of attack." 173 Article 27 of the Fourth Geneva Convention similarly provides that 
"protected persons . . . shall at all times be . . . protected . . . against all acts of vio- 
lence." 174 Therefore, although the nature of their duties, and/or proximity to or 
presence in the combat zone, may increase the risk that these civilian contractors 
may be incidentally injured or killed, as long as they do not directly participate in 
hostilities, they are not subject to direct attack. 

Civilians lose their protected status if they directly participate in the hostilities. 
AP I, Article 51 provides that "[civilians shall enjoy the protection afforded by 
this section, unless and for such time as they take a direct part in hostilities'' (emphasis 
added). Similarly, Common Article 3 of the 1949 Geneva Conventions provides 
that "persons taking no active part in the hostilities . . . shall in all circumstances 
be treated humanely" (emphasis added). Consequently, civilian contractors or 
CIA operatives who conduct drone strikes against military objectives would be 
considered to be directly participating in hostilities and could be lawfully targeted 
by the enemy. 

A. Inherently Governmental Functions 

DoD avoids this issue by prohibiting its civilian personnel and contractors from 
engaging in functions that are inherently governmental, including combat opera- 
tions. 175 Pursuant to DoD guidelines, civilians are prohibited from participating in 
combat operations if the planned use of disruptive and/or destructive combat ca- 
pabilities is an inherent part of the mission. 176 Combat operations include actively 
seeking out, closing with and destroying enemy forces, including employment of 
firepower and other destructive and disruptive capabilities on the battlefield. 177 
Consistent with this guidance, only US military personnel may operate US weap- 
ons systems against the enemy. 

B. Direct Participation in Hostilities 

Opponents to the use of UAS to conduct strikes outside the traditional combat 
zone argue that CIA operatives and civilian contractors conducting such strikes are 
unlawful combatants and may not participate in hostilities. 178 This position is con- 
trary to the majority view expressed by most law of war scholars, who hold that it is 
not a war crime for civilians to participate in hostilities, but if they do, they are not 
entitled to combatant immunity under domestic law for their belligerent acts. 179 
Even the Special Rapporteur (Philip Alston) would agree that under IHL "civilians 
. . . are not prohibited from participating in hostilities." 180 In his report filed with 

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Raul A. "Pete" Pedrozo 



the Human Rights Council in late May, Alston indicates that direct participation in 
hostilities is not a war crime, but that there are consequences that flow from such 
participation. 

First, because they are directly participating in hostilities by conducting targeted 
killings, intelligence personnel may themselves be targeted and killed. Second, in- 
telligence personnel do not have immunity from prosecution under domestic law 
for their conduct. Thus CIA personnel could be prosecuted for murder under the 
domestic law of any country in which they conduct targeted drone killings, and 
could also be prosecuted for violations of applicable US law. 181 

The aforementioned discussion assumes, of course, that the United States is en- 
gaged in an armed conflict with al-Qaeda and its affiliates. If the opponents to the 
use of drones are correct in arguing that the United States is not at war with al- 
Qaeda, then civilian operators would not be considered "unlawful combatants" 
and their actions could be legally justified as a "lawful exercise of the customary 
sovereign right of self-defense against a non-state actor." 182 

VII. Targeting Terrorists Who Directly Participate in Hostilities 

Questions concerning who may be targeted by a UAS strike have also been raised 
by opponents to the use of drones. These questions center on what activity consti- 
tutes direct participation in hostilities (DPH) and how long individuals who have 
directly participated in hostilities maybe targeted. In his May 2010 report, Philip 
Alston indicates that 

regardless of the enemy's tactics, in order to protect the vast majority of civilians, direct 
participation may only include conduct close to that of a fighter, or conduct that 
directly supports combat. More attenuated acts, such as providing financial support, 
advocacy, or other non-combat aid, does [sic] not constitute direct participation. . . . 
Thus, although illegal activities, e.g., terrorism, may cause harm, if they do not meet the 
criteria for direct participation in hostilities, then States' response must conform to 
the lethal force standards applicable to self-defence and law enforcement. 183 

Other critics have similarly argued that IHL "supports decisions in favor of sparing 
life and avoiding destruction in close cases." 184 

Neither the Geneva Conventions nor the Additional Protocols define DPH. In 
an effort to fill this gap, the ICRC issued the non-binding Interpretive Guidance on 
the Notion of Direct Participation in Hostilities under International Humanitarian 
Law. 185 In essence, the ICRC guidelines address three questions: 

• Who is considered a civilian for the purposes of the principle of distinction? 



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Use of Unmanned Systems to Combat Terrorism 



• What conduct amounts to direct participation in hostilities? 

• What modalities govern the loss of protection against direct attack? 

A. Who Is a Civilian? 

The ICRC takes the position that, in an international armed conflict, "all persons 
who are neither members of the armed forces of a party to the conflict nor 
participants in a levee en masse are civilians and . . . entitled to protection against 
direct attack unless and for such time as they take a direct part in hostilities." 186 For 
a non-international armed conflict, the ICRC maintains that 

all persons who are not members of State armed forces or organized armed groups of a 
party to the conflict [i.e., armed forces of a non-State party to the conflict who continu- 
ously take a direct part in hostilities (continuous combat function) ] are civilians and . . . 
entitled to protection against direct attack unless and for such time as they take a direct 
part in hostilities. 187 

B. What Constitutes DPH? 

An act must meet the following criteria in order to constitute DPH under the Inter- 
pretive Guidance: 188 

• Threshold of Harm. An act likely to adversely affect the military operations 
or military capacity of a party to an armed conflict or to inflict death, injury or de- 
struction on protected persons or objects. 

• Direct Causation. There must be a direct causal link between the act and the 
harm likely to result from that act or from a coordinated military operation of 
which that act constitutes an integral part. 

• Belligerent Nexus. The act must be specifically designed to directly cause the 
required threshold of harm in support of a party to the conflict and to the detri- 
ment of another. 

C. Loss of Protected Status 

The third question, concerning belligerent nexus, addresses a number of issues, in- 
cluding the length of the period during which civilians lose their protected status if 
they directly participate in hostilities. According to the Interpretive Guidance, civil- 
ians lose their protection against direct attack only for the "duration of each spe- 
cific act amounting to [DPH]," which includes measures preparatory to the 
execution of the act, "as well as the deployment to and the return from the location 
of its execution." 189 When civilians cease to directly participate in hostilities, they 
regain their status as civilians and are protected against direct attack (the so-called 



254 



Raul A. "Pete" Pedrozo 



"revolving door" of civilian protection). The only exception to this rule is that 
civilians who assume a CCF as members of an organized armed group belonging to 
a non-State party to the conflict lose their protected status for as long as they re- 
main members of the group. 

D. Problems with the ICRC Approach 

The ICRC guidelines concerning the "revolving door" of civilian protection and 
the application of the CCF are problematic, at best, and appear to be biased against 
modern military forces, particularly when applied in the UAS context. To illus- 
trate: under the "revolving door" of civilian protection, if an Afghan baker leaves 
his shop with an improvised explosive device (IED), places it on the side of the 
road, detonates it when a convoy drives by, killing five coalition soldiers, then 
safely returns to his home without being detected, the baker can no longer be di- 
rectly targeted, because he has regained his protected status as a civilian (assuming 
of course that he has not assumed a CCF). This "baker by day, terrorist by night" 
can be apprehended and prosecuted for his criminal acts, but he is no longer con- 
sidered to be directly participating in hostilities and is not subject to direct attack. 

Application of the ICRC guidelines to individuals involved in the use of IEDs 
against coalition forces also produces anomalous results. The ICRC maintains that 
a person who purchases and smuggles components for an IED and the person who 
assembles and stores the IED in a workshop do not cause direct harm and are, 
therefore, not directly participating in hostilities and may not be directly targeted. 
According to the ICRC, only the person planting or detonating the IED meets the 
requirement of direct causation for the purposes of direct participation in hostili- 
ties. Purchasing, smuggling, assembling and storing an IED that is later used in an 
attack against coalition forces are not considered by the ICRC to be "integral parts 
of a concrete and coordinated tactical operation." 

Compare the ICRC's "integral part" analysis to the use of drones. The ICRC 
considers all the following individuals to be directly participating in hostilities and 
therefore subject to direct attack: 

• the individual who loads the missile on a drone that is used to conduct a 
strike against terrorist targets; 

• the individual who launches (or recovers) the UAS, even though control of 
the drone is transferred to uniformed combat forces when it arrives on station; 

• the computer specialist who operates the UAS through remote control; 

• the operator collecting intelligence data; 

• the individual illuminating the target; 



255 



Use of Unmanned Systems to Combat Terrorism 



• the specialist controlling the firing of the missile; 

• the radio operator transmitting orders to fire the missile; and 

• the overall mission commander. 

While acknowledging that only a few of these individuals carry out activities that, 
in isolation, could be said to directly cause the required threshold of harm, the 
ICRC interprets the standard of direct causation more broadly in the UAS context 
to include conduct that causes harm in conjunction with other acts. In other 
words, even if a specific act does not on its own directly cause the required thresh- 
old of harm, "the requirement of direct causation would still be fulfilled where the 
act constitutes an integral part of a concrete and coordinated tactical operation that 
directly causes such harm." 190 

It is clear from these examples that the Interpretive Guidance guidelines are in- 
ternally inconsistent and provide greater protection for terrorists and insurgents 
than they do for civilians and civilian contractors accompanying the force. It is in- 
conceivable that the ICRC does not consider the purchasing, smuggling of com- 
ponents, assembling or storing of an IED that is later used in an attack on coalition 
forces to be an "integral part of a concrete and coordinated tactical operation," 
thereby fulfilling the requirement of direct causation/harm. Yet, the ICRC would 
say that a contractor loading a missile on a UAS that is later dropped on a terrorist 
target is directly participating in hostilities because the act of loading the missile is 
an integral part of a concrete and coordinated tactical operation that directly 
causes harm to the enemy. Such a conclusion is absurd and completely ignores the 
fact that IED attacks "are the No. 1 killer of US troops in Afghanistan" and "more 
than half of American combat deaths [in 2008] were the result of IED" attacks. 191 

The ICRC is supposed to act as a neutral and independent humanitarian organi- 
zation to protect innocent civilians and promote and work for a better understand- 
ing of IHL; its job is not to level the playing field between opposing belligerents. 
Unfortunately, in the case of DPH the ICRC has lost its impartiality by attempting 
to penalize the use of civilian contractors and high-tech unmanned systems, while 
at the same time providing additional protection to supporters of terrorist groups 
like al-Qaeda. 

E. The Israeli Approach 

The Israeli Supreme Court has taken a different, yet similar, approach to DPH. In 
the Public Committee against Torture in Israel v. Government of Israel decision, the 
Court determined that a civilian is considered to have taken part in hostilities when 

• using weapons in an armed conflict, while gathering intelligence or while 
preparing himself/herself for the hostilities; 

256 



Raul A. "Pete" Pedrozo 



• acting as a voluntary human shield; 

• sending a person to commit a hostile act, directing the hostile act and plan- 
ning a hostile act; or 

• joining a terrorist organization and committing a chain of hostilities, with 
short periods of rest between them. 192 

The Court additionally determined that lethal force could only be used against a 
civilian that is considered to have taken a direct part in hostilities if the following 
criteria were satisfied: 193 

• well-based information is needed before categorizing a civilian as directly 
participating in hostilities; 

• a civilian taking a direct part in hostilities cannot be attacked if a less harmful 
means can be employed (e.g., arrest) unless such means involve a risk so great to 
the lives of the soldiers that they are not required or harm to nearby innocent civil- 
ians might be greater than that caused by refraining from using lesser means; and 

• after an attack on a civilian suspected of taking an active part in hostilities, a 
thorough, independent investigation regarding the precision of the identification 
of the target and the circumstances of the attack upon him is to be performed. 

Although not a perfect solution, the Israeli approach is more realistic and offers 
sufficient safeguards to ensure protection of innocent civilians in the targeting 
decision. 

VIII. Use of Advanced Weapons Systems 

A final argument, which merits little attention, has been advanced by some oppo- 
nents to the use of drones. In general, they argue that the use of advanced weapons 
systems in lethal operations against terrorists is illegal under international law. In 
response to this argument the State Department Legal Adviser correctly noted that 
"the rules that govern targeting do not turn on the type of weapon system used, and 
there is no prohibition under the laws of war on the use of technologically ad- 
vanced weapons systems in armed conflict ... so long as they are employed in con- 
formity with applicable laws of war." 194 In this regard, DoD regulations require 
that all acquisition and procurement of DoD weapons and weapon systems be con- 
sistent with all applicable domestic law, treaties and international agreements, cus- 
tomary international law and the law of armed conflict. To ensure compliance with 
international law and US treaty obligations, all intended acquisitions of weapons 
and weapons systems are subject to a legal review by a DoD attorney authorized to 
conduct such reviews. 195 Drones have been determined to be consistent with all US 



257 



Use of Unmanned Systems to Combat Terrorism 



treaty obligations and international law. A similar requirement applies to non-lethal 
weapons. Each military service is required to conduct a legal review of the acquisi- 
tion of all non-lethal weapons to ensure consistency with US treaty obligations, 
customary international law and, in particular, the laws of war. 196 

IX. Conclusion 

The position being advocated by human rights advocates and the opponents to the 
use of drones is a position of weakness that, if adopted by the Obama administra- 
tion, will provide al-Qaeda and its affiliates with a substantial advantage in their 
war of aggression against the United States and its allies. J. Cofer Black, the State 
Department Coordinator for Counterterrorism, got it right when he testified be- 
fore the House Subcommittee on International Terrorism, Nonproliferation and 
Human Rights in 2004: 

No country is safe from the scourge of terrorism. No country is immune from attack, 
and neither policies of deterrence nor accommodation will ward off attack. Al-Qaeda 
seeks only death and chaos, which is why we will continue to pursue the only viable 
course of action before us, which is to destroy this enemy utterly, both with the cooper- 
ation of our allies and by unilateral action when necessary This is definitely a long- 
term fight. This is a war [W]hile we have made substantial progress toward eradi- 
cating the threat posed by al-Qaeda, we are on a long, tough road. We cannot afford to 
falter [I] n counterterrorism . . . weakness is exploited, and it must not be shown. 197 

Mr. Black's testimony is equally applicable today. The United States must continue 
to attack al-Qaeda and its affiliates wherever they maybe found in order to achieve 
victory in this protracted war. In the short term, the use of UAS appears to be the 
best (if not the only) viable option to target terrorists operating from the remote 
areas of the FATA, Yemen, Somalia and other places. As Harold Koh emphasized, 
al-Qaeda continues to pose an imminent threat to the United States and the terror- 
ist organization 

has not abandoned its intent to attack the United States, and indeed continues to attack 

us [Accordingly,] the United States has the authority under international law, and 

the responsibility to its citizens, to use force, including lethal force, to defend itself, 
including by targeting persons such as high-level al-Qaeda leaders who are planning 
attacks. 198 

If you've seen the movie Patton you will recall General Patton's address to the 
Third Army on the eve of the D-Day invasion in 1944, which begins with his 



258 



Raul A. "Pete" Pedrozo 



famous quip: "I want you to remember that no bastard ever won a war by dying for 
his country. He won it by making the other poor dumb bastard die for his coun- 
try." 199 Opponents to the use of drones argue that US forces must first warn or at- 
tempt to capture suspected terrorists before they are engaged with lethal force, 
even if the terrorists are operating out of remote and inaccessible areas like the 
FATA. This "capture first" mentality violates the first tenet of Patton's clever re- 
mark by turning a blind eye to reality — such a limitation on the use of force in an 
armed conflict will provide greater protection for suspected terrorists and will in- 
evitably result in large numbers of US casualties. Fortunately, Presidents Bush and 
Obama chose the Patton alternative — providing al-Qaeda terrorists the opportu- 
nity to die for their cause. Accordingly the United States will continue to use UAS 
to attack enemy belligerents, including al-Qaeda operatives, consistent with the in- 
herent right of self-defense and the laws of war. 

Notes 

1. US Government Accountability Office, No. GAO-09-175, Unmanned Aircraft 

SYSTEMS: ADDITIONAL ACTIONS NEEDED TO IMPROVE MANAGEMENT AND INTEGRATION OF 

DOD Efforts to Support Warfighter Needs 7 (2008), available at http://www.gao.gov/ 
products/GAO-09-175. 

2. Rise of the Drones: Unmanned Systems and the Future of War: Hearing Before the 
Subcomm. on National Security and Foreign Affairs of the H. Comm. on Oversight and Government 
Reform, 111th Cong. 11 (2010) (statement of John F. Tierney, Chairman, available at https:// 
hsoU.org/?view&doc=120460&coU=limited) [hereinafter Rise of the Drones]. 

3. Id. (statement of Dyke D. Weatherington, Deputy Director, Unmanned Warfare, Office 
of the Under Secretary of Defense (Acquisition, Technology & Logistics), available at http:// 
www.fas.org/irp/congress/20 1 0_hr/0323 1 Oweatherington.pdf) . 

4. Anna Mulrine, UAV Pilots, AlRFORCE-MAGAZINE.COM (Jan. 2009), http://www.airforce 
-magazine.com/MagazineArchive/Pages/2009/January%202009/0109UAV.aspx. 

5. Rise of the Drones, Statement of Chairman Tierney, supra note 2. 

6. Dan Murphy, Obama ups Pakistan drone strikes in assassination campaign, GLOBAL 
NEWS BLOG (Feb. 2, 2010), http://www.csmonitor.com/World/Global-News/2010/0202/Obama 
-ups-Pakistan-drone-strikes-in-assassination-campaign. 

7. Id. 

8. Adam Entous, Special Report: How the White House Learned to Love the Drone, 
REUTERS.COM (May 18, 2010), http://www.reuters.com/article/idUSTRE64H5SL20100518. See also 
Wikipedia, Drone attacks in Pakistan, http://en.wikipedia.org/wiki/Drone_attacks_in_Pakistan 
(last visited July 27, 2010). 

9. Andrew Scutro, U.S. CNO: Use of Drones Raises Legal Questions, DEFENSENEWS.COM 
(Nov. 2, 2009), http://www.defensenews.com/stoiy.php?i=4356043. 

10. Harold Hongju Koh, Legal Adviser, US Department of State, Remarks at the Annual 
Meeting of the American Society of International Law: The Obama Administration and Interna- 
tional Law (Mar. 25, 2010), http://www.state.gOv/s/l/releases/remarks/139119.htm. 



259 



Use of Unmanned Systems to Combat Terrorism 



1 1 . Mary Ellen O'Connell, When Is a War Not a War? The Myth of the Global War on Terror, 
12 ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 4 (2005), available at http://papers 
.ssrn.com/sol3/papers.cfm?abstract_id=893822##. 

12. Prosecutor v. Tadic, Decision on Defence Motion for Interlocutory Appeal on Jurisdic- 
tion, Case No. IT-94- 1 -I, J 70 (Int'l Crim. Trib. for the former Yugoslavia Oct. 2, 1995), available 
at http://www.icty.Org/x/cases/tadic/acdec/en/5 1 002.htm. 

13. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to 
the Protection of Victims of Non-International Armed Conflicts art. 1(2), June 8, 1977, 1125 
U.N.T.S. 609, reprinted in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, 
RESOLUTIONS AND OTHER DOCUMENTS 71 1 (Dietrich Schindler & Jiri Toman eds., 4th ed. 
2004) [hereinafter AP II]. 

14. Mary Ellen O'Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 
2004-2009, at 15 (Notre Dame Law School Legal Studies Research Paper No. 09-43, 2010), avail- 
able at http://ssrn.coml abstract= 150 1144. 

15. Id. 

16. S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001). 

17. Id.. 

18. See Collective Defence, NATO.INT, http://www.nato.int/cps/en/SID-05DFBDA5-8B 1 1 FC93/ 
natolive/topics_59378.htm (last visited July 27, 2010). Article 5 provides: 

The Parties agree that an armed attack against one or more of them in Europe or North 
America shall be considered an attack against them all and consequently they agree that, 
if such an armed attack occurs, each of them, in exercise of the right of individual or col- 
lective self-defence recognised by Article 51 of the Charter of the United Nations, will 
assist the Party or Parties so attacked by taking forthwith, individually and in concert 
with the other Parties, such action as it deems necessary, including the use of armed 
force, to restore and maintain the security of the North Atlantic area. 

Text of Washington Treaty available at http://www.nato.int/cps/en/natolive/official_texts 
_17120.htm. 

19. OAS Resolution RC.24/RES.1/01, Terrorist Threat to the Americas, OEA/Ser.F/II.24, 
RC.24/RES.1/01 (Sept. 21, 2001), available at http://www.oas.org/OASpage/crisis/RC.24e.htm. 
Article 3(1) of the Rio Treaty provides: 

The High Contracting Parties agree that an armed attack by any State against an Ameri- 
can State shall be considered as an attack against all the American States and, conse- 
quently, each one of the said Contracting Parties undertakes to assist in meeting the 
attack in the exercise of the inherent right of individual or collective self-defense recog- 
nized by Article 51 of the Charter of the United Nations. 

Text of Rio Treaty available at http://www.state.gOv/p/wha/rls/70681.htm. 

20. Id. 

21. Pub. L. No. 107-40, 1 15 Stat. 224 (2001), codified at 50U.S.C. § 1541 note (Supp.V2005). 

22. Rise of the Drones, supra note 2 (statement of David W. Glazier, Professor of Law, Loyola 
Law School Los Angeles, available at http://www.fas.org/irp/congress/2010_hr/042810glazier 
.pdf) [hereinafter Glazier statement]; Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. 
Rumsfeld, 548 U.S. 557 (2006); The White House, National Security Strategy (May 20 10), available 
at http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf. 

23. Glazier statement, supra note 22, at 2. 

24. See 2 JOHN BASSETT MOORE, The CAROLINE Incident, A DIGEST OF INTERNATIONAL 
LAW 409(1906). 



260 



Raul A. "Pete" Pedrozo 



25. The White House,The National Security Strategy of the United States of America (Mar. 
2006), available at http://georgewbush=whitehouse.archives.gov/nsc/nss/2006. 

26. Terrorist Attacks in the U.S. or Against Americans, lNFOPLEASE.COM, http://www.infoplease 
.com/ipa/AOOO 1454.html (last visited July 27, 2010). 

27. US Casualty Status, http://www.defense.gov/NEWS/casualty.pdf (last visited July 27, 
2010). 

28. Paola Totaro, Bin Laden 'plans new attack on US, ' SMH.COM.AU (Nov. 10, 2008), http:// 
www.smh.com.au/articles/2008/ 11/10/12261 65435339.html. 

29. Bin Laden Tells America to be Ready for Revenge Against U.S. Policy, FOXNEWS.COM 
(June 3, 2009), http://www.foxnews.com/printer_friendly_story/0,3566,524881.html. 

30. Anahad O'Connor 8c Eric Schmitt, Terror Attempt Seen as Man Tries to Ignite Device on 
Jet, NYTIMES.COM (Dec. 25, 2009), http://www.nytimes.com/2009/12/26/us/26plane.html. 

3 1 . Bin Laden Claims Responsibility for Christmas Day Bomb Attempt, FOXNEWS.COM (Jan. 24, 
2010), http://www.foxnews.com/world/2010/01/24/bin-laden-claims-responsibility-christmas 
-day-bomb-attempt/. 

32. Harry Siegel, Yemen reignites U.S. politics of terror, POLITICO (Jan. 2, 2010), http://www 
.politico.com/news/stories/01 10/31 109.html. 

33. Id. 

34. Bin Laden Warns US Against Executing 9/11 Mastermind, VOA NEWS (Mar. 25, 2010), 
http://www.globalsecurity.org/security/library/news/2010/03/sec-100325-voa02.htm. 

35. Mark Mazzetti, Sabrina Tavernise & Jack Healy, Suspect Charged, Said to Admit to Role in 
Plot, NYTIMES.COM (May 4, 2010), http://www.nytimes.com/2010/05/05/nyregion/05bomb 
.html?src=un&feedurl=http%3A%2F%2Fjson8.nytimes.com%2Fpages%2Fnyregion%2Findex 
.jsonp; Complaint, United States v. Shahzad, No. 10 Mag. 928 (S.D.N.Y 2010), available at http:// 
documents.nytimes.com/official-complaint-us-vs-shahzad. 

36. Mazzetti, Tavernise 8c Healy, supra note 35. 

37. Id. 

38. Tom Hays & Larry Neumeister, Times Square car bomber details his chilling plot, ABC 
NEWS (June 22, 2010), http://abcnews.go.com/US/wireStory?id= 109768 17; Benjamin Weiser, A 
Guilty Plea in Plot to Bomb Times Square, NYTlMES.COM (June 21, 2010), http://query.nytimes 
.com/gst/mllpage.html?res=9B05E0DA1030F931A15755C0A9669D8B63. 

39. Mazzetti, Tavernise 8c Healy, supra note 35. See also Mark Mazzetti 8c Scott Shane, Evi- 
dence Mounts for Taliban Role in Car Bomb Plot, NYTlMES.COM (May 5, 2010), http:// 
www.nytimes.com/20 10/05/06/nyregion/06bomb.html?th8cemc=th; Rasool Dawar, Intel offi- 
cials: US missiles kill 10 in Pakistan, YAHOO! (May 9, 2010), http://news.yahoo.eom/s/ap/ 
20100509/ap_on_re_as/as_pakistan; Pakistani Taliban Behind Times Sq. Plot, Holder Says, 
NYTIMES.COM (May 9, 2010), http://www.nytimes.com/aponline/2010/05/09/us/AP-US-Times 
-Square-Holder.html?_r= 1 8cemc=na. 

40. Mazzetti, Tavernise 8c Healy, supra note 35; William K. Rashbaum 8c Scott Shane, 3 in 
Custody May Have Supported Bomb Suspect, NYTlMES.COM (May 13, 2010), http:// 
www.nytimes.com/2010/05/14/nyregion/14terror.html; Munir Ahmed, Another suspect re- 
vealed in Times Square bomb case, YAHOO! (May 28, 2010), http://news.yahoo.eom/s/ap/ 
20100528/ap_on_re_as/as_pakistan_times_square. Since Khan's arrest, the American embassy 
has warned other American citizens in Pakistan to avoid using the catering company (Hanif 
Rajput Caterers), because of its possible links to terrorist groups. Jane Perlez, Pakistani Major 
Among 2 New Arrests in Bombing, NYTlMES.COM (May 21, 2010), http://www.nytimes.com/ 
201 0/05/22/world/asia/22pstan.html?th8cemc=th. 



261 



Use of Unmanned Systems to Combat Terrorism 



41. Ali Kotarumalos, Police uncover plot to kill Indonesia's president, YAHOO! (May 14, 2010), 
http://news.yahoo.eom/s/ap/20 1 005 1 4/ap_on_re_as/as_indonesia_terror_plot/. 

42. Sameer N. Yaccoub, Iraq says it uncovered al-Qaida plot on World Cup, YAHOO! (May 1 7, 
2010), http://news.yahoo.eom/s/ap/20100517/ap_on_re_mi_ea/ml_iraq_al_qaida; Pakistani ter- 
ror suspect arrested in Zimbabwe, NDTV.COM (June 27, 2010), http://www.ndtv.com/article/ 
sports/pakistani-terror-suspect-with-26- 1 1 -links-arrested-in-zimbabwe-police-34022. 

43. Josh Kron & Mohammed Ibrahim, Islamists Claim Attack in Uganda, NYTlMES.COM 
(July 12, 2010), http://www.nytimes.com/2010/07/13/world/africa/13uganda.html; Josh Kron, 
Bombers Kill More Than 50 in Attacks in Uganda Capital, NYTlMES.COM (July 11, 2010), http:// 
www.nytimes.com/20 1 0/07/ 1 2/world/africa/ 1 2uganda.html. 

44. Peter Grier, Al Qaeda still a threat to U.S., intelligence chiefs say, CSMONITOR.COM 
(Feb. 8, 2008), http://www.csmonitor.com/layout/set/print/content/view/print/220498. See also 
Carol Cratty, Document says number of attempted attacks on U.S. is at all-time high, CNN.COM 
(May 26, 2010), http://www.cnn.com/2010/US/05/26/terrorism.document/?hpt=T2. 

45. Peter Bergen & Katherine Tiedemann, The Year of the Drone: An Analysis of U.S. Drone 
Strikes in Pakistan, 2004-2010, at 5, NEWAMERICA.NET, http://newamerica.net/publications/ 
policy/ the_year_of_the_drone (last visited July 27, 2010). 

46. Al-Qaeda: The Threat to the United States and its Allies, Hearing Before the Subcomm. on 
International Terrorism, Nonproliferation and Human Rights of the H. Comm. on International 
Relations, 108th Cong. 27 (2004) (statement of Ambassador J. Cofer Black, Coordinator for 
Counterterrorism, US Department of State, available at http://commdocs.house.gov/committees/ 
intlrel/hfa92869.000/hfa92869_0f.htm) [hereinafter Black statement]. 

47. U.S.: Pennsylvania woman tried to recruit terrorists, CNN.COM (Mar. 10, 2010), http:// 
www.cnn.com/2010/CRIME/03/09/pennsylvania.terror.indictment/index.html. 

48. Indictment, United States v. Colleen R. LaRose, Criminal No. 10-Cr-123 (E.D. Pa. 2010), 
available at http://i2.cdn.turner.com/cnn/2010/images/03/09/larose.pdf. 

49. Id. 

50. More about Jamie Paulin-Ramirez, CRIME SCENE KC (Apr. 7, 2010), http://blogs 
.kansascity.com/crime_scene/2010/04/more-about-jamie-paulinramirez.html. See also Super- 
seding Indictment, United States v. LaRose and Ramirez, Criminal No. 10-123 (E.D. Pa. 2010), 
available at http://blogs.kansascity.com/files/ramirez.pdf. 

51. U.S.: Pennsylvania woman tried to recruit terrorists, supra note 47. 

52. Dane Schiller, Hempstead man charged with trying to aid al-Qaida, CHRON.COM (June 4, 
2010), http://www.chron.com/disp/story.mpl/metropolitan/7035345.html. 

53. Ohio couple accused of helping Hezbollah, UPI.COM (June 3, 2010), http://www.upi.com/ 
Top_News/US/2010/06/03/Ohio-couple-accused-of-helping-Hezbollah/UPI-35191275620678/. 

54. William K. Rashbaum, Two Arrested at Kennedy Airport on Terror Charges, NYTlMES 
.COM (June 6, 2010), http://www.nytimes.com/2010/06/07/nyregion/07terror.htmRnl-nyregion 
&emc=ural. 

55. Scott Shane & Eric Schmitt, Norway Announces Three Arrests in Terrorist Plot, 
NYTIMES.COM (July 8, 2010), http://www.nytimes.com/2010/07/09/world/europe/09norway 
.html; Ian MacDougall, Matt Apuzzo & Adam Goldman, Officials: 3 arrested in Norway al-Qaida 
bomb plot, YAHOO! (July 8, 2010), http://news.yahoo.eom/s/ap/20100708/ap_on_re_us/norway 
_terror. 

56. Caren Bohan, Obama says al Qaeda still greatest threat to U.S., REUTERS.COM (Nov. 16, 
2009), http://ww.reuters.com/assets/printraid-USTRE5AFlPS20091 1 16. 

57. Andrew Gully, Al-Qaeda threat to US greater than Iran: Clinton, GOOGLE.COM (Feb. 7, 2010), 
http://www.google.com/hostednews/afp/article/ALeqM5jjv4k3tjxDYWsB50n2E5qPOk5UwQ. 



262 



Raul A. "Pete" Pedrozo 



58. US Maritime Administration Advisory # 2010-03, Subj: Vessels Transiting the Bab-Al- 
Mandab Strait, Red Sea, and Gulf of Aden Along the Coast of Yemen (Mar. 9, 2010), available at 
http://www.marad.dot.gov/news_room_landmg_page/maritime_advisories/advisory/advisoiy2010 
-03.htm. 

59. Cratty, supra note 44. 

60. Al-Qaeda: The Threat to the United States and its Allies, supra note 46, at 9. 

61. Koh, supra note 10. 

62. Id. 

63. Id. 

64. Id. 

65. Exec. Order No. 11905, 3 C.F.R. 90, 101 (1977), available at http://www.ford.utexas 
.edu/LIBRARY/speeches/760 1 1 Oe.htm. 

66. Exec. Order No. 12036, §2-305, 3 C.F.R. 112 (1978), available at http://www.fas.org/irp/ 
offdocs/eo/eo- 12036.htm ("no person employed by or acting on behalf of the United States Gov- 
ernment shall engage in, or conspire to engage in, assassination"). 

67. Exec. Order No. 12333, 3 C.F.R. 200 (1981), reprinted in 50 U.S.C. 401 (1988), available 
at http://www.fas.org/irp/ofTdocs/eo 12333.htm. The prohibition against assassination remained 
in place despite amendments to E.O. 12333 by the Bush administration in 2004 and again in 
2008. Exec. Order No. 13355, 69 Fed. Reg. 53593 (Aug. 27, 2004); Exec. Order No. 13470, 73 Fed. 
Reg. 45325 (July 30, 2008). 

68. Department of the Army, Office of the Judge Advocate General of the Army, DAJA- 
IA (27-1 A) Memorandum of Law, Subj: Executive Order 12333 and Assassination (Nov. 2, 
1989), available at http://www.hks.harvard.edu/cchrp/Use%20of%20Force/October%202002/ 
Parks_final.pdf [hereinafter Park Memo]; accord Elizabeth B. Bazan, Congressional Research 
Service, Assassination Ban and E.O. 12333: A Brief Summary (2002), available at http://www 
.fas.org/irp/crs/RS21037.pdf. 

69. Park Memo, supra note 68. 

70. Convention Relative to the Treatment of Prisoners of War art. 4, Aug. 12, 1949, 6 U.S.T. 
3316,75U.N.T.S. 135, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 13, at 580 [here- 
inafter GC III]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating 
to the Protection of Victims of International Armed Conflicts arts. 43, 51, June 8, 1977, 1125 
U.N.T.S. 3, reprinted in id. at 7 11 [hereinafter AP I]. 

71. Park Memo, supra note 68. 

72. U.S. policy on assassinations, CNN.COM (Nov. 4, 2002), http://archives.cnn.com/2002/ 
LAW/ll/04/us.assassination.policy/. 

73. Walter Pincus, Saddam Hussein's Death Is a Goal, Says Ex-CIA Chief, WASHINGTON 
POST, Feb. 15, 1998, at A36, available at http://www.washingtonpost.com/wp-srv/inatl/longterm/ 
iraq/keyplayers/saddam02 1 598.htm. 

74. John Dean, Examining the President's Powers to Fight Terrorism, FlNDLAW (Sept. 14, 
2001), http://writ.news.findlaw.com/dean/20010914.html. 

75. U.S. policy on assassinations, supra note 72. 

76. Barton Gellman, CIA Weighs 'Targeted Killing' Missions, WASHINGTON POST, Oct. 
28, 2001, at A01, available at http://www.washingtonpost.com/ac2/wp-dyn/A63203-2001Oct27 
?language=printer. 

77. Jeffrey Addicott, The Yemen Attack: Illegal Assassination or Lawful Killing?, JURIST (Nov. 7, 
2002), http://jurist.law.pitt.edu/forum/forumnew68.php. 



263 



Use of Unmanned Systems to Combat Terrorism 



78. Editorial, In Defense of Drones: The Laws of War and the Right to Self-Defense, 
WASHINGTON POST, Apr. 13, 2010, at 1 6, available at http://www.washingtonpost.com/wp-dyn/ 
content/article/20 1 0/04/ 1 2/AR20 1 004 1 204086.html. 

79. Koh, supra note 10. 

80. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Civil and Po- 
litical Rights, Including the Questions of Disappearances and Summary Executions % 39, U.N. 
Doc. E/CN.4/2003/3 (Jan. 13, 2003) (by Asma Jahangir), available at http://www.unhchr.ch/ 
Huridocda/Huridoca.nsf/TestFrame/b72f2cfe9aa28e58802568ab003c572e. 

81. M,im 37-39. 

82. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Implementation 
of General Assembly Resolution 60/251 of 15 Mar. 2006 Entitled "Human Rights Council," Adden- 
dum, Summary of Cases Transmitted to Government and Replies Received, U.N. Doc. A/HRC/4/ 
20/ Add. 1 (Mar. 12, 2007) (by Philip Alston), available at http://daccess-dds-ny.un.org/doc/ 
UNDOC/GEN/G07/120/20/PDF/G0712020.pdf?OpenElement [hereinafter Special Rapporteur 
Report of March 12, 2007]. 

83. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 
Addendum^ Mission to the United States of America ffl| 71-73, U.N. Doc. A/HRC/ll/2/Add.5 
(May 28, 2009) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/hrcouncil/ 
docs/ 1 1 session/ A.HRC.l 1.2.Add.5.pdf. 

84. U.S. Use of Drones Queried by U.N., NEW YORK TIMES, Oct. 28, 2009, at A 17, available at 
http://www.nytimes.com/2009/10/28/world/28nations.html. 

85. Letter dated 14 April 2003 from the Chief of Section, Political and Specialized Agencies, 
of the Permanent Mission of the United States of America to the United Nations Office at 
Geneva Addressed to the Secretariat of the Commission on Human Rights, U.N. Doc. E/CN.4/ 
2003/G/80 (Apr. 22, 2003), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G03/ 
138/04/PDF/G0313804.pdf?OpenElement. 

86. Id. 

87. Id. 

88. Special Rapporteur Report of March 12, 2007, supra note 82, at 344. 

89. Id. 

90. Office of the High Commissioner for Human Rights, Commission on Human Rights 
Resolution 1982/29 (Mar. 11, 1982), available at http://ap.ohchr.Org/documents/E/CHR/ 
resolutions/E-CN_4-RES-1982-29.doc. 

91. G.A. Res. 60/251, U.N. Doc. A/RES/60/251 (Apr. 3, 2006), available at http://www2 
.ohchr.org/english/bodies/hrcouncil/docs/A.RES. 60. 25 l_En.pdf. 

92. Koh, supra note 10. 

93. O'Connell, supra note 1 1, at 8. 

94. Dawar, supra note 39. See also Mary Ellen O'Connell, Drones and the Law: What We 
Know, INTLAWGRRLS (Dec. 7, 2009), http://intlawgrrls.blogspot.com/2009/12/drones-and-law 
-what-we-know.html. 

95. Eighth United Nations Congress on the Prevention of Crime and the Treatment of Of- 
fenders, Aug. 27-Sept. 7, 1990, Basic Principles on the Use of Force and Firearms by Law Enforce- 
ment Officials, U.N. Doc. A/CONF.144/28/Rev.l,prov. 9 (1990), available at http://www2.ohchr 
.org/english/law/firearms.htm. 

96. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, H 
25 (July 8), available at http://www.icj-cij.org/docket/index.php?pl=3&p2=48ck=el8cp3=4& 
case=95 [hereinafter Nuclear Weapons Advisory Opinion]. 



264 



Raul A. "Pete" Pedrozo 



97. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 
Advisory Opinion, 2004 I.C.J. 136, 177-81 (July 9), reprinted in 43 INTERNATIONAL LEGAL 
MATERIALS 1009, 1038-39 (2004), available at http://www.icj-cij.org/docket/index.phpTp 1=3& 
p2=4&k=5a&case=131&code=mwp&p3=4 [hereinafter Wall Advisory Opinion]. 

98. Rise of the Drones, supra note 2 (statement of Mary Ellen O'Connell, Robert and Marion 
Short Chair in Law, University of Notre Dame at 2, available at http://www.fas.org/irp/congress/ 
20 10_hr/0428 10oconnell.pdf) [hereinafter O'Connell statement]. 

99. Amitai Etzioni, Unmanned Aircraft Systems: The Moral and Legal Case, JOINT FORCE 
QUARTERLY, 2d Quarter 2010, at 66, 68. 

100. European Convention for the Protection of Human Rights and Fundamental Freedoms, 
Nov. 4, 1950, 213 U.N.T.S. 222, available at http://conventions.coe.int/treaty/en/Treaties/Html/ 
005.htm. 

101. In the event of their use, nuclear weapons would in all circumstances be unable to 
draw any distinction between the civilian population and combatants, or between 
civilian objects and military objectives, and their effects, largely uncontrollable, 
could not be restricted, either in time or in space, to lawful military targets. Such 
weapons would kill and destroy in a necessarily indiscriminate manner, on account 
of the blast, heat and radiation occasioned by the nuclear explosion and the effects 
induced; and the number of casualties which would ensue would be enormous. 

Nuclear Weapons Advisory Opinion, supra note 96, \ 92. 

102. Id., If 105 (emphasis added). 

103. Wall Advisory Opinion, supra note 97, \ 163 (emphasis added). 

104. Al-Awlaki's sermons are believed to have inspired attacks in the United States, including 
the Fort Hood shooting incident in November 2009 and the attempt by the "underwear bomber" 
to blow up a US plane bound for Detroit in December 2009. Yemeni Cleric Advocates Killing US 
Civilians, ARIRANG NEWS (May 24, 2010), http://www.arirang.co.kr/News/News_Print.asp 
?type-news&nseq- 1033 12. 

105. 317 U.S. 1,20(1942). 

106. Glazier statement, supra note 22, at 4. 

107. Nuclear Weapons Advisory Opinion, supra note 96, f 25. 

108. International Covenant on Civil and Political Rights art. 6.1, G.A. Res. 2200A (XXI), 
U.N. Doc. A/6316 (Dec. 16, 1966), available at http://www2.ohchr.org/english/law/ccpr.htm. 

109. Jordan J. Paust, Self-Defense Targetings of Non-State Actors and Permissibility of US. Use 
of Drones in Pakistan, 19 JOURNAL OF TRANSNATIONAL LAW & POLICY 237, 264 (2010), available 
at http://papers.ssrn.com/sol3/papers.cfmTabstract_id- 1 5207 1 7##. 

1 10. Marko Milanovic, A Norm Conflict Perspective on the Relationship between International 
Humanitarian Law and Human Rights Law, 14 JOURNAL OF CONFLICT AND SECURITY LAW 459, 
460 (2010). 

111. McCann v. United Kingdom, App. No. 18984/91, 324 Eur. Ct. H.R. (ser. A) (1995), 
available at http://www.leeds.ac.uk/law/hamlyn/gibralta.htm. 

112. European Convention, supra note 100. 

113. Charlie Savage, UN. Official Set to Ask U.S. to End C.I. A. Drone Strikes, NYTlMES.COM 
(May 27, 2010), http://www.nytimes.com/2010/05/28/world/asia/28drones.html. 

114. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 
Study on Targeted Killings, Addendum f 73, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by 
Philip Alston), available at http://www2.ohchr.Org/english/bodies/hrcouncil/docs/14session/A.HRC 
.14.24.Add6.pdf [hereinafter Study on Targeted Killings]. 

115. Id., ^65. 



265 



Use of Unmanned Systems to Combat Terrorism 



116. M.,1|93. 

117. Human Rights Council Res. 8/3, Mandate of the Special Rapporteur on Extrajudicial, 
Summary or Arbitrary Executions (June 28, 2008), available at http://ap.ohchr.org/documents/ 
E/HRC/resolutions/ A_HRC_RES_8_3.pdf. 

118. Grier, supra note 44. 

1 19. Entous, supra note 8. 

120. O'Connell, supra note 14. 

121. Dawar, supra note 39; Mary Ellen O'Connell, Combat Drones: Losing the Fight Against 
Terrorism, PEACE POLICY (Oct. 1, 2009), available at http://peacepolicy.nd.edu/2009/10/01/ 
combat-drones/. See also O'Connell, supra note 1 1, at 18, 21; Entous, supra note 8. 

122. Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW 
REVIEW 106 (1989), available at http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/ 
pdf-files/277079~l.pdf. 

123. Rise of the Drones, supra note 2 (statement of Kenneth Anderson, Professor of Law, 
Washington College of Law, American University at 4, available at https://hsdl.org/?view&doc 
= 120460&coll=limited) [hereinafter Anderson statement]. 

124. Sofaer, supra note 122, at 106. 

125. United States v. Arizona, 120 U.S. 479, 484 (1887). 

126. Corfu Channel (U.K. v. Alb), 1949 I.C.J. 4, 22 (Apr. 9), available at http://www.unhcr 
.org/refworld/docid/402399e62.html. 

127. Sofaer, supra note 122, at 108. 

128. Koh, supra note 10 (emphasis added). 

129. Dawar, supra note 39. 

130. All of the examples are cited in Paust, supra note 109, at 241-48. 

131. Regulations Respecting the Laws and Customs of War on Land, annexed to Convention 
No. IV Respecting the Laws and Customs of War on Land art. 22, Oct. 18, 1907, 36 Stat. 2227, re- 
printed in THE LAWS OF ARMED CONFLICTS, supra note 13, at 60 [hereinafter Hague Regula- 
tions]. See also AP I, supra note 70, art. 35(1). 

132. API, supra note 70, art. 51(2). 

133. Id., art. 57(2). 

134. Id. 

135. The Hostage Case, United States v. List et al., 11 TWC 1253-54 (1950). 

136. AP I, supra note 70, art. 58(b). 

137. Id., art. 51(3). 

138. US Navy, Marine Corps & Coast Guard, The Commander's Handbook on the Law of 
Naval Operations ch. 5, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7A (2007) [hereinaf- 
ter Commander's Handbook]. 

139. O'Connell statement, supra note 98, at 5; O'Connell, supra note 14. 

140. Mary Ellen O'Connell, Flying Blind: US Drones Operate Outside International Law, 
AMERICA (Mar. 15, 2010), http://www.americamagazine.org/content/article.cfm?article_id= 
12179; Bergen & Tiedemann, supra note 45, at 5. 

141. Anthony Loyd, US drone strikes in Pakistan tribal areas boost support for Taleban, 
TlMESONLINE (Mar. 10, 2010), available at http://www.timesonline.co.uk/tol/news/world/asia/ 
article7055965.ece. 

142. O'Connell, supra note 14. 

143. Entous, supra note 8; Anne Flaherty, CIA chief Panetta: US has driven back al-Qaida, 
YAHOO! (June 28, 2010), http://news.yahoo.eom/s/ap/20100628/ap_on_go_ca_st_pe/us_us 
_afghanistan. 



266 



Raul A. "Pete" Pedrozo 



144. Counterterrorism Strategy Initiative, New America Foundation, The Year of the Drone: 
An Analysis of U.S. Drone Strikes in Pakistan, 2004-2010, NEWAMERICA.NET, http:// 
counterterrorism.newamerica .net/drones (last visited July 27, 2010) [hereinafter New America 
Foundation Study] . See also Bergen & Tiedemann, supra note 45, at 5. 

145. Luis Martinez & Martha Raddatz, Al Qaeda Operations Planner Saleh Al-Somali Believed 
Dead in Drone Strike, ABC NEWS (Dec. 11, 2009), http://abcnews.go.com/International/Terrorism/ 
al-qaeda-operations-planner-saleh-al-somari-believed/story?id=9314585. 

146. Kenneth R. Bazinet & James Gordon Meek, Top two Al Qaeda operatives in Iraq, Abu 
Ayyub al-Masri and Abu Umar al-Baghdadi, killed: U.S., NYDAILYNEWS.COM (Apr. 19, 2010), 
http://www.nydailynews.com/news/world/20 1 0/04/ 1 9/20 1 0-04- 1 9_top_al_qaeda_operative_in 
_iraq_abu_ayyub_almasri_killed_says_prime_minister_.html; Eric Schmitt, Strike Is Said to Kill 
a Top Qaeda Leader, NYTlMES.COM (May 31, 2010), http://www.nytimes.com/2010/06/01/ 
world/asia/0 1 qaeda.html. 

147. Bergen & Tiedemann, supra note 45, at 5; accord Entous, supra note 8. 

148. New America Foundation Study, supra note 144; Bergen & Tiedemann, supra note 45, 
at 5. 

149. AIRRA, a think tank of researchers and political activists from the North-West Fron- 
tier Province and FATA, conducts research, surveys and collects statistics on various issues con- 
cerning the Taliban and al-Qaeda terrorism and human security in those areas. AIRRA research 
teams go deep inside Taliban- and al-Qaeda-occupied areas of the FATA to collect information. 
Most of the areas are not accessible to journalists. Farhat Taj, A Survey of Drone Attacks in 
FATA, THE NEWS INTERNATIONAL (Mar. 5, 2009), http://www.khyberwatch.com/forums/ 
showthread.php?6217-Farhat-Taj-A-survey-of-Drone-Attacks-in-FATA. 

150. Id. 

151. Id. 

152. Id. 

153. Entous, supra note 8. 

154. Id. 

155. Id. 

156. AP I, supra note 70, arts. 57(2)(a)(iii), 57(2)(b); Commander's Handbook, supra note 
138, ch. 5. 

157. O'Connell, supra note 121. 

158. O'Connell, supra note 94; O'Connell, supra note 140. 

159. New America Foundation Study, supra note 144; Bergen & Tiedemann, supra note 45, 
at 5. 

160. Loyd, supra note 141. 

161. Entous, supra note 8. 

162. AP I, supra note 70, art. 51(2). 

163. Id., arts. 44(3), 48. 

164. O'Connell, supra note 94. 

165. Anderson statement, supra note 123, at 3; O'Connell statement, supra note 98, at 1-2. 

166. Rise of the Drones, supra note 2 (statement of Edward Barrett, Director of Research, 
Stockdale Center for Ethical Leadership, U.S. Naval Academy at 2, available at https://hsdl.org/ 
?view&doc=120460&coll=limited); accord Glazier statement, supra note 22, at 3. 

167. See Hague Regulations, supra note 131, art. 27; Convention No. IX Concerning Bom- 
bardment by Naval Forces in Time of War art. 5, Oct. 18, 1907, 36 Stat. 2351, 1 Bevans 681, re- 
printed in THE LAWS OF ARMED CONFLICTS, supra note 13, at 1080; Convention for the 
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 21, 



267 



Use of Unmanned Systems to Combat Terrorism 



Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31, reprinted in id. at 461; Convention Relative to the 
Protection of Civilian Persons in Time of War art. 28, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 
287, reprinted in id. at 580 [hereinafter GC IV); AP II, supra note 13, art. 13. 

168. Etzioni, supra note 99, at 67. 

169. Koh, supra note 10. 

170. AP I, supra note 70, art. 51(8) ("Any violation of these prohibitions shall not release the 
Parties to the conflict from their legal obligations with respect to the civilian population and civil- 
ians, including the obligation to take the precautionary measures provided for in Article 57."). 

171. Koh, supra note 10. 

172. Hague Regulations, supra note 131, art. 13; GC III, supra note 70, art. 4A(4). 

1 73. AP II, supra note 70, art. 50( 1 ) provides that " [a] civilian is any person who does not be- 
long to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third 
Convention and in Article 43 of this Protocol." Id., art. 51(2). 

174. GC IV, supra note 167, art. 27. 

175. Federal Activities Inventory Reform Act of 1998, Pub. L. No. 105-270, 112 Stat. 2382 
(1998); Office of Mgmt. & Budget, Circular No. A-76: Performance of Commercial Activities, 
Aug. 4, 1983 (revised 1999), available at http://www.whitehouse.gov/omb/circulars/a076/ 
a076.html; Deputy Secretary of Defense, Department of Defense Directive 1 100.4, Guidance for 
Manpower Management ^J 3.2.3 (Feb. 12, 2005); Under Secretary of Defense for Personnel and 
Readiness, Department of Defense Instruction 1 100.22, Policy and Procedures for Determining 
Workforce Mix1|4.c, end. 4 1J1.C (Apr. 12,2010) [hereinafter DoDI 1100.22]; Under Secretary of 
Defense for Acquistion, Technology and Logistics, Department of Defense Directive 3020.41, 
Contractor Personnel Authorized to Accompany the U.S. Armed Forces \ 6.1.5 (Oct. 3, 2005). 

176. DoDI 1 100.22, supra note 175, end. 4 If I.e. 

177. Id. 

178. O'Connell, supra note 94; O'Connell, supra note 1 1, at 12-13, 22, 24. 

179. Glazier statement, supra note 22, at 5. 

180. Study on Targeted Killings, supra note 1 14, 1fl[ 70-71. 

181. Id. A72. 

182. Anderson statement, supra note 123, at 9. 

183. Study on Targeted Killings, supra note 1 14, ^f 60, 64. 

184. O'Connell statement, supra note 98, at 5. 

185. Nils Melzer, International Committee of the Red Cross, Interpretive 
Guidance on the Notion of Direct Participation in Hostilities under International 
HUMANITARIAN LAW (2009), available at http://www.icrc.org/Web/eng/siteengO.nsf/htmlall/direct 
-participation-report_res/$File/direct-participation-guidance-2009-icrc.pdf. The document is 
not legally binding, but it does provide the ICRC's official recommendations on how IHL relat- 
ing to the notion of DPH should be interpreted in contemporary armed conflict. The US govern- 
ment is reviewing the document and has not yet taken an official position on whether it agrees or 
disagrees with the ICRC's recommendations. 

186. Mat 20. 

187. Id. 2X27. 

188. Id. at 46. 

189. Mat 65. 

190. Mat 54. 

191. Jim Michaels, IED Beam Could Change Face of War, USA TODAY, June 7, 2010, at 8A, 
available at http://www.usatoday.com/printedition/news/20100607/ieds07_st.art.htm; James 



268 



Raul A. "Pete" Pedrozo 



Dao & Andrew W. Lehren, Grim Milestone: 1,000 Americans Dead, NYTlMES.COM (May 18, 
2010), http://www.nytimes.com/20 10/05/1 9/us/ 1 9dead.html?th&emc=th. 

192. Public Committee against Torture in Israel v. Government of Israel fflf 33, 36, 37, 39, HCJ 
769/02, Judgment (Dec. 13, 2006), 46 INTERNATIONAL LEGAL MATERIALS 373 (2007), available 
at http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf. 

193. Id., If 40. 

194. Koh, supra note 10. 

195. Deputy Secretary of Defense, Department of Defense Directive 5000.01, The Defense 
Acquisition System If El. 1.1 5 (May 12, 2003). 

196. Deputy Secretary of Defense, Department of Defense Directive 3000.3, Policy for Non- 
Lethal Weapons If 5.6.2 (July 9, 1996). 

197. Black statement, supra note 46, at 14, 20-21. 

198. Koh, supra note 10. 

199. Opening speech from the movie Patton, transcript available at http://www.histoiyinfilm 
xom/patton/speech.htm. 



269 



X 



New Technology and the Law of 
Armed Conflict 



Darren M. Stewart* 

Technological Meteorites and Legal Dinosaurs? 

The tacit contract of combat throughout the ages has always assumed a basic 
equality of moral risk: kill or be killed. Accordingly violence in war avails itself of 
the legitimacy of self-defence. But this contract is void when one side begins kill- 
ing with impunity. 1 

Introduction 

The issue of new technology and its implications for the law of armed conflict 
(LOAC) is not a new question. For centuries nations and their militaries 
have had to respond to developments in the means and methods of warfare. These 
have ranged from hardware developments, such as the crossbow and gunpowder, 
to the development of tactics, such as asymmetric warfare or doctrines like the 
effects-based approach to operations (EBAO). In response to each of these chal- 
lenges, belligerents have either developed enhanced weapons or tactics, or suffered 
defeat. Usually technological change has been of a relatively minor, evolutionary 



* Colonel, British Army; Director, Military Department, International Institute of Humanitar- 
ian Law (IIHL). The views expressed in this article do not reflect those of the IIHL, the British 
Army, the United Kingdom Ministry of Defence or Her Majesty's Government and are the au- 
thor's personal views. 



New Technology and the Law of Armed Conflict 



nature, affording localized tactical or operational advantage. Occasionally devel- 
opments have been profound, changing the strategic balance in the favor of one 
side over the other. History provides examples of these in the form of the crossbow, 
gunpowder and nuclear weapons in the case of hardware. Similarly the Greek 
hoplite phalanx, the Roman legion and the development of the corps structure by 
Napoleon are all examples of innovations which have shaped tactics. 

The question frequently posed today is whether the current nature of develop- 
ments in military technology constitutes a similarly seismic shift in the military 
paradigm. Will the development of unmanned systems in the land, air and mari- 
time environments be recorded in history in the same revolutionary terms as those 
previously mentioned? This article will consider this question in the context of the 
implications that flow from these developments for LOAC. 

Over the centuries LOAC, in its various guises, has always had as its focus the 
regulation of armed conflict so as to protect the victims of war. 2 During the nine- 
teenth century, in response to both the development of military technology and the 
prevailing social mores of the time, LOAC rules started to become formalized and 
began to reflect the format that we are familiar with today. 

One of the notable features of LOAC has been its evolutionary flexibility. This 
flexibility has allowed LOAC to evolve in a manner that adapts to the developments 
in both technological capabilities (means) and tactics (methods) employed in 
armed conflict. This has included specific measures to ban weapons 3 and tactics 4 
when seen as appropriate. More important, LOAC has demonstrated its flexibility 
through the defining principles underpinning its operation. These principles — 
military necessity, humanity, distinction and proportionality — are of an enduring 
quality and provide a benchmark against which developments in technology and 
tactics can be assessed as to their lawfulness. When applied in the context of pre- 
vailing international mores, LOAC proves itself both flexible and responsive to 
changes in the armed conflict paradigm. 

The changing character of weapons systems and their impact on the law is nei- 
ther one-dimensional nor negative. In fact, technological advances in weaponry 
frequently work to enhance application of LOAC, particularly in the areas of dis- 
tinction and proportionality. Challenges usually arise when such developments 
raise wider questions as to what are the acceptable ethical limits in the application 
of technology to military purposes. In this context LOAC, operating as a system 
regulating what is inherently a human activity within a prevailing set of interna- 
tional mores, becomes an important consideration. 

This article will consider whether the changing character of weapons systems, 
particularly unmanned systems and vehicles, is such as to call into question 
LOAC's ability to respond to the introduction of new technology onto the 

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Darren M. Stewart 



battlefield. In considering this question, the paper addresses three aspects: current 
developments in technology, the impacts on LOAC standards arising from new 
technology and the implications for accountability. 

Part I will consider current developments in military technology, including un- 
manned systems that are either remotely controlled, have automated elements to 
their operation or can act in an autonomous manner. What are the military drivers 
in the development of such technology? Do developments in artificial intelligence 
constitute a turning point in technology such as to warrant a bespoke response 
from the law? What then of the existing legal framework for the assessment of new 
weapons for their lawfulness as articulated by Article 36 of Additional Protocol I 
(AP I)? 5 These questions will all be addressed in Part I. 

The impact of new technology in armed conflict brings with it, even under the 
extant legal paradigm, an obligation on belligerents to apply the rules such that 
applicable standards of behavior may be at variance between those who possess 
new technology and those that don't. Whether this calls for a change in the law to 
acknowledge common but differentiated responsibilities 6 or simply a renewed inter- 
pretation of what the applicable LOAC standards are will be considered in Part II. 

Of course the question of standards in turn raises the issues of accountability 
and the means by which set standards are to be measured. Does the law of unin- 
tended consequences mean that the changing nature of weapons systems will result 
in an increased level of attention and scrutiny applied to senior levels of the chain 
of command as the only "humans in the loop"? Have States, by removing humans 
from the operation of weapons systems, created a whole new set of implications for 
accountability? Part III looks at whether civilian leaders and military commanders, 
in their quest to employ newer and better technology, have considered the conse- 
quences of placing themselves more squarely in the focus for breaches of LOAC 
when these (as they invariably will) occur. 

Finally, the article will conclude by addressing whether LOAC has been able to 
adequately respond to the challenge of the changing character of weapons or if a 
fundamental root-and-branch reassessment is required. 

Part I. Current Developments in Technology: Unmanned Systems and 

Unmanned Vehicles 

Definitions 

The combination of technology and military jargon can be a dangerous distrac- 
tion in the context of terminology and precision in its use. This article will there- 
fore use terminology in line with that the United States has developed in its 
FY2009-2034 Unmanned Systems Integrated Roadmap (hereinafter referred to as 

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New Technology and the Law of Armed Conflict 



the Roadmap). 7 The Roadmap contains a multitude of acronyms used in this 
area, which are usefully consolidated at Annex H to the document. 

It should come as no surprise that the accepted term that applies generically to 
all vehicles and systems that are either remotely controlled, automated or exhibit a 
degree of autonomy is "unmanned vehicle systems" (UVS). 8 UVS are broken down 
by environment: land (unmanned ground vehicles (UGVs)), maritime (unmanned 
maritime systems (UMS)) and air (unmanned air systems (UASs)). 

UGVs are those that are either armed (ground combat vehicles (GCVs)) or un- 
armed. UMS include unmanned undersea vehicles (UUVs) and unmanned surface 
vehicles (USVs). UASs include unmanned air vehicles (UAVs), tactical unmanned 
air vehicles (TUAVs) and unmanned combat air vehicles. Some commentators 
break UASs into three broad categories: TUAVs, stealth UAVs and agile or expend- 
able UAVs, 9 however, this structure has not received widespread endorsement. 
There have been some attempts by NATO Systems Concepts and Integrations pan- 
els to seek standardization in this area, including terminology; however, this is yet 
to produce a definitive guide. 10 

Equal in importance to the requirement that terminology used with respect to 
new technology is of a uniform nature is the requirement to understand the wider 
military context in which new technology is employed. 

Military Doctrine as a Driver for the Development of New Technology 

While the development of terminology in relation to new military technology is 
relatively straightforward, what is less so is the drivers for its development and use. 
The desire to develop a decisive hardware advantage over an opponent is but one of 
these. As military doctrine evolves in relation to the employment of unmanned sys- 
tems, technology is seen as a key enabler rather than a panacea to the challenges 
posed by the paradigm of the contemporary operating environment. The manner 
in which technology is used by the military is therefore critical. As Air Commodore 
Julian Stinton puts it: 

[L]etting the thinking drive the technology could lead to more coherence in approach 
and more commonality in capabilities under an overall concept, but less potential for 
exploitation of novel game-changing technologies. This is the steady, analytical, non- 
ephemeral approach, requiring just as much technological capability in information 
management, prioritisation, automation, pattern seeking, relational activity using star- 
ing arrays, change detection, wide-area scanning and cueing, as the adrenalin [e] -laden, 
higher-buzz technological demands of real-time ISR. 11 

For those in the military, this will, of course, be an obvious statement; however, 
the benefits derived from recent developments in new military technology have 

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Darren M. Stewart 



been distorted by a perception that the quest for newer and better technology is vir- 
tually an "end in itself," rather than being one of a number of "means to an end." Air 
Chief Marshal Sir Brian Burridge describes the challenge in somewhat blunter terms: 

Those who are lured by expensive technologies without a deeper understanding of how 
to use them, task them and integrate them will be left with empty pockets and shiny 
toys— the "esoteric chimera" I referred to earlier. Those that understand their 
limitations, benefits and the most important of all, the human dimension, will be left 
with a little more money to spend elsewhere and an essential capability that they can 
use effectively. 12 

With the widespread introduction of EBAO by Western militaries into their opera- 
tional doctrine, the use of new technology has become but one (albeit sophisti- 
cated) component of an increasingly integrated, multifaceted campaign plan. As 
such, new military technology cannot be simply viewed as an upward trending 
graph of enhancement in capabilities. It is the manner in which the myriad capabil- 
ities afforded by new technology are employed by commanders and their staffs that 
is becoming the decisive factor in differentiating opponents and, as a consequence, 
their ability to prevail in armed conflict. 

Advocates for the employment of automated or even autonomous systems ar- 
gue that the phenomenon of information overload, which is prevalent on the mod- 
ern battlefield, underscores the requirement for systems that can process 
information and make decisions far more efficiently than humans. Such an ap- 
proach fails to consider two important elements. First, the processing of informa- 
tion into intelligence requires a broad array of skills, including intuitive, 
experience-based analysis and cognitive functions of which automated or autono- 
mous systems are incapable. Second, and perhaps most important, is the fact that 
the battlefield is a complex system of interlinked actions, each of which may impact 
differently on an opponent depending on the context in which it occurs, and which 
will not have the same effect each time. It is the management of this complex net- 
work, seeking to influence the effect actions have in a coordinated manner toward 
a certain set of campaign objectives, that is at the heart of effects-based operations. 
As such: 

To the extent that it works, the place of the human in the system seems to have changed 
dramatically. The important judgement is now made at a data fusion or intelligence 
centre — or, alternatively, by a forward observer aware of how dynamics of a battle have 
made a particular target temporarily important. 13 



275 



New Technology and the Law of Armed Conflict 



Thus, the use of new technology in this context, while enabling greater efficien- 
cies and providing potentially decisive effect, does so within a wider campaign con- 
struct that requires the exercise of clear human direction and control. 

Types of New and Evolving Technology 

Broadly speaking, UVS operating types fit into three categories. First are those that 
are remotely controlled, also known as tele-operated, where an operator will con- 
trol the UVS by some form of direct radio signal (line of sight or satellite). The 
operator can be either relatively close, such as in the same operational theater, or 
many thousands of miles away as in the case of Predator/Reaper operations in 
Afghanistan. 14 

The second category is automated UVS, meaning that functions are carried out 
within preprogrammed parameters without the requirement for a command from 
a human. There are many examples of this type of UVS currently employed by 
militaries around the world. For example, Global Hawk is a UAS, most of whose 
flight commands are controlled by onboard systems without recourse to a human 
operator. Similarly in the land environment, automated sentry systems that re- 
spond to movement in, or breaches of, security perimeters are often used in rela- 
tion to minefields or other installations, and provide an automated response 
without human intervention. In the maritime context, the close-in weapons sys- 
tems used to defend surface warships from anti-ship missile attack are, due to the 
speed of response required to defeat the threat, largely automated. 

Finally, work is being carried out to develop autonomous systems for military 
application that incorporate forms of artificial intelligence, allowing the UVS to 
operate independently of humans and carry out all of the functions that otherwise 
would have involved human action. 

Perhaps the best single official source of data on the types and employment of 
UVS is the US Roadmap. 15 Not only does it contain an analysis of future require- 
ments (including detailed descriptions of individual system characteristics) for the 
US military (the largest single user and developer of UVS), but it places these re- 
quirements within an operational context focusing on the how and why of UVS 
employment. The investment in terms of resources and effort by the United States 
in developing new UVS technology is impressive; the funding for this project alone 
over a five-year period (2009-13) is projected to be a staggering $18.9 billion. 16 
This commitment to the development and use of UVS is underscored by the 2001 
US congressional mandate that one-third of military aircraft and ground combat 
vehicles be unmanned by 2015. 17 The size and scope of the US unmanned systems 
program bring into sharp focus the impact such new technology has, and will con- 
tinue to have, on US military capability. Other nations can ill afford to ignore such 

276 



Darren M. Stewart 



a development. Professor Jack Beard paints the US fascination with technology in a 
rather more somber light: 

The U.S. military- technological experience represents a consistent, but exaggerated, vari- 
ation of the historical trends in this area, as Americans have displayed an almost bound- 
less confidence in the power of science and technology to promote "progress" and have 
tended to trust in the power of military technology to translate into success in war. 18 

It is not possible to list the myriad of types and names of systems that are being 
developed or will become spin-offs of the programs covered by the US unmanned 
systems program. The table below illustrates the number and types of UVS that the 
United States assesses as having a force application capability (i.e., capable of offen- 
sive action). These systems span the ubiquitous Predator and Reaper UAVs to 
GCVs and the newly developed littoral combat ship (LCS). The LCS is the latest ad- 
dition to the US Navy and is designed to operate on a modular basis with several 
unmanned systems loaded on board, including the Remote Mine Hunting System 
and MQ-8B Fire Scout Vertical Takeoff Unmanned Air Vehicle. 



Table 1 
Named Unmanned Systems Associated with Force Application 19 


Air-to-Air UAS 


WMD Aerial Collection System (WACS) 


Automated Combat SAR Decoys 


Autonomous Expeditionary Support Plat- 
form (AESP) 


Automated Combat SAR Recovery 


Contaminated Remains/Casualty Evacua- 
tion & Recovery 


Combat Medic UAS for Resupply & 
Evacuation 


Crowd Control System (Non-lethal Gladia- 
tor Follow- on) 


EOD UAS 


Defender 


Floating Mine Neutralization UAS 


Intelligent Mobile Mine System 


High Altitude Persistent/Endurance UAS 


Next Generation Small Armed UGV 


High Speed UAS 


Nuclear Forensics Next Generation UGV 


Micro Air Vehicle (MAV) 


Small Armed UGV Advanced 


MQ-1 


Small Unmanned Ground Vehicle (SUGV) 


MQ-9 Reaper 


UAS-UGV Teaming 


Next Generation Bomber UAS 


Amphibious UGV/USV 



277 



New Technology and the Law of Armed Conflict 



Table 1 
Named Unmanned Systems Associated with Force Application (continued) 


Off Board Sensing UAS 


Autonomous Undersea Mine Layer 


Precision Acquisition and Weaponized 
System (PAWS) 


Bottom UUV Localization System (BULS) 


SEAD/DEAD UAS 


Harbor Security USV 


Small Armed UAS 


Hull UUV Localization System (HULS) 


STUAS/Tier II 


Mine Neutralization System 


Unmanned Combat Aircraft System- 
Demonstration (UCAS-D) 


Next Generation USV with Unmanned Sur- 
face Influence Sweep System (USV w/US3) 


Vertical Take-off and Landing Tactical Un- 
manned Air Vehicle (VTUAV Firescout) 


Remote Minehunting System (RMS) 


WARRIOR A/I-GNAT 


SUSV with Unmanned Surface Influence 
Sweep System (USV w/US3) 


Weapon borne Bomb Damage Information 
UAS 


VSW UUV Search, Classify, Map, Identify, 
Neutralize (SCMI-N) 



To illustrate that not all developments have focused on offensive capability, the 
table below illustrates that an even greater number of UVS are being developed that 
are associated with protection capabilities. These systems include harbor security 
UASs, explosive ordnance disposal (EOD) UASs and battlefield casualty extraction 
robots designed to reduce risk to military medics by carrying out the traditional 
stretcher-bearer function. 



Table 2 
Named Unmanned Systems Associated with Protection 20 


Automated Combat SAR Decoys 


MK 3 MOD RONS 


Automated Combat SAR Recovery 


MK 4 MOD Robot, EOD 


Combat Medic UAS for Resupply & 
Evacuation 


Mobile Detection Assessment Response 
System (MDARS) 


EOD UAS 


Multi-function Utility/Logistics and 
Equipment (MULE) ARV Assault Light 
(ARV-A(L)) 


MQ-1 


Multi-function Utility/Logistics and Equip- 
ment (MULE) Countermine (MULE-C) 



278 



Darren M. Stewart 





Table 2 
Named Unmanned Systems Associated with Protection (continued) 


MQ-5B Hunter 


Multi-function Utility/Logistics and Equip- 
ment (MULE) Transport (MULE-T) 


RQ-7 Shadow 


Next Advanced EOD Robot 


STUAS/Tier II 


Next Generation Maritime Interdiction 
Operations UGV 


Unmanned Combat Aircraft System- 
Demonstration (UCAS-D) 


Next Generation Small Armed UGV 


Vertical Take-off and Landing Tactical 
Unmanned Air Vehicle (VTUAV Firescout) 


Nuclear Forensics Next Generation UGV 


WARRIOR A/I-GNAT 


PackBot Explorer 


Advanced EOD Robot System (AEODRS) 


PackBot FIDO 


All Purpose Remote Transport System 

(ARTS) 


PackBot Scout 


Anti-Personnel Mine Clearing System, Re- 
mote Control (MV-4B) 


Route Runner 


Automated Aircraft Decontamination 


Small Armed UGV Advanced 


Automated Bare Base/Shelter Construction 
UGV 


Talon Eng/3B 


Automated Facilities Services 


Talon EOD 


Autonomous CASEVAC & Enroute Care 
System (ACES) 


Talon IV 


Autonomous Expeditionary Support Plat- 
form (AESP) 


UAS-UGV Teaming 


Battlefield Casualty Extraction Robot 
(BCER) 


xBot (PackBot Fastac) 


CBRN Unmanned Ground Vehicle 
Advanced 


Autonomous Undersea Mine 
Neutralization 


CBRN Unmanned Ground Vehicle 
Advanced Concept Technology 
Demonstration 


Bottom UUV Localization System (BULS) 


Combat Engineering & Support Robotic 
System 


Harbor Security USV 



279 



New Technology and the Law of Armed Conflict 



Table 2 
Named Unmanned Systems Associated with Protection (continued) 


Contaminated Remains/Casualty Evacua- 
tion & Recovery 


Hull UUV Localization System (HULS) 


Crowd Control System (Non-lethal Gladia- 
tor Follow-on) 


Mine Neutralization System 


Defender 


Next Generation Surface-launched Mine 
Counter-Measures Unmanned Undersea 
Vehicle (SMCM UUV) 


F6A-ANDROS 


Next Generation USV with Unmanned Sur- 
face Influence Sweep System (USV w/US3) 


HD-1 


Remote Minehunting System (RMS) 


MARCbot 


SEAFOX USV 


Maritime Interdiction Operations UGV 


Surface-launched Mine Counter-Measures 
Unmanned Undersea Vehicle (SMCM 
UUV) 


Mine Area Clearance Equipment (MACE) 


USV with Unmanned Surface Influence 
Sweep System (USV w/US3) 


MK 1 MOD Robot, EOD 


VSW UUV Search, Classify, Map, Identify, 
Neutralize (SCMI-N) 


MK 2 MOD Robot, EOD 





Other nations have not been idle in the face of the incredible pace of UVS devel- 
opment and the unprecedented resource allocation that the United States has com- 
mitted to the task. Both the United Kingdom and Israel have long been pioneers in 
UVS development, albeit in slightly different areas. In response to the Irish Repub- 
lican Army terrorist threat in the second half of the twentieth century, which regu- 
larly manifested itself through either remotely detonated or time-delayed 
improvised explosive devices, the United Kingdom pioneered the development of 
a remotely operated EOD capability. Similarly, it was Israeli application of UAS 
capability in the Bekaa Valley in Lebanon in the 1970s that showed the potential for 
the future development of such systems. 21 

However, development in these countries has not been restricted solely to these 
types of systems. The United Kingdom is actively developing its capability in 
TUAVs, with the early prototype Phoenix TUAV having been replaced by both the 
Hermes 450 TUAV and Desert Hawk (a handheld TUAV). 22 Further development 



280 



Darren M. Stewart 



of the Watchkeeper TUAV will see the capability for automated takeoff and land- 
ing being deployed. 23 In addition, the United Kingdom has invested in developing 
longer-range stealth UAS with offensive strike capability as part of the Taranis proj- 
ect, as well as in developing other offensive strike capability in the form of loitering 
munitions 24 and cruise missiles such as Brimstone. 25 

In addition to its vibrant UAS industry, Israel has also developed capabilities in 
the land environment with point- defense systems, such as the Guardium System, 
which illustrates increasingly enhanced and sophisticated levels of automation. 26 
South Korea has developed a similar concept with its Samsung Techwin SGR-A1 
Sentry Guard Robot 27 designed to perform surveillance and sentry duties of 
minefields along the Korean Demilitarized Zone. China is also widely assumed to 
be developing UVS technology following the unveiling of the Anjian (Invisible 
Sword) prototype pilotless combat aircraft by the China Aviation Industry Corpo- 
ration I at the sixth International Aviation and Aerospace Exhibition held in 
Zhuhai, in October 2006. 28 

As one would expect when technology develops at such a rate, there are also 
prototypes that suggest either bizarre or incredible future developments. These 
include the suggestion of using implants in crickets to aid in the detection of the 
presence of either explosive chemicals or carbon dioxide emissions in order to 
detect explosives and humans, respectively. 29 Other prototypes include LAPCAD 
Engineering's FOOT vehicle, the Fly Out of Trouble jet-engine-powered supercar, 
and the aquatic robot named Ghost Swimmer that mimics the propulsion drive of 
a bluefin tuna. 30 While these developments may seem incredible to many, other 
previously dismissed systems such as FIST (Fully Integrated Soldier Technology), 
which consists of a combination of special e-textiles, exoskeletons and nanotech ar- 
mor, are being developed beyond mere prototype sketches into credible programs by 
defense research agencies such as the US Defense Advanced Research Projects 
Agency (DARPA). Indeed, such are the advances in nanotechnology that a proto- 
type ultramicro UAV called the Maple Seed Flyer is being developed by Lockheed 
Martin as a means of providing persistent ISR stealth capability. 31 

Legal Consequences of New Technology 

While much of the new technology discussed in the preceding section is of an auto- 
mated or semiautonomous nature, the area giving rise to the greatest controversy, 
including legal consequences, is that of autonomous systems. These are UVS pro- 
grammed to act independently of human control. A leading proponent of this 
technology is Professor Ron Arkin of the Georgia Institute of Technology. 32 
Arkin's hypothesis is that not only can robots that are programmed with an ethical 
code outperform humans in terms of their ability to process complex, fast-moving 

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New Technology and the Law of Armed Conflict 



scenarios, but they will consistently behave in a manner that is more humane. This 
is not merely the zealous utterance of an extreme fringe of the unmanned system 
development community. Arkin has been commissioned by DARPA to conduct a 
study on the feasibility of his hypothesis and whether it, in fact, has any military ap- 
plication. In relation to his research for DARPA Arkin states: "This effort has an 
over-arching goal of producing an 'artificial conscience,' to yield a new class of ro- 
bots termed humane-oids — robots that can perform more ethically in the battle- 
field than humans are capable of doing." 33 

Clearly the suggestion of robots performing tasks, including offensive operations, 
without recourse to human controllers raises not only legal, but considerable ethical 
questions. Support for these systems, of course, presumes that programming code 
can be produced that will allow robots to act in accordance with LOAC — a matter 
that is yet to be determined. However, the mere claim that robots can act in accor- 
dance with LOAC does not test the difficult, if not problematic, question of operat- 
ing UVS in armed conflict, where the fog of war creates ambiguity and 
unpredictability beyond the imagination of even the most gifted programmer. 

These concerns have not gone unnoticed by States in their analyses of the devel- 
opment and employment of this type of technology. The US Roadmap states: 

Because the DoD complies with the Law of Armed Conflict, there are many issues re- 
quiring resolution associated with employment of weapons by an unmanned system. 
For a significant period into the future, the decision to pull the trigger or launch a mis- 
sile from an unmanned system will not be fully automated, but it will remain under the 
full control of a human operator. Many aspects of the firing sequence will be fully auto- 
mated but the decision to fire will not likely be fully automated until legal, rules of en- 
gagement, and safety concerns have all been thoroughly examined and resolved. 34 

One could add that the "significant period into the future" referred to will also 
include an element of the international community becoming familiar with, and 
unconcerned about, the operation of such UVS, assuming, of course, that the 
technology will develop in such a way as to satisfy all the operating criteria of the 
military. This may well mean that for the foreseeable future we will continue to see 
human control being exercised over UVS, even where these systems may have the 
capability of operating independently of human control. The United States Air 
Force Unmanned Aircraft Systems Flight Plan 2009-2047, 35 essentially a single- 
service plan to implement the strategic guidance provided in the Roadmap, clearly 
anticipates the existence of this continued human control when it makes the follow- 
ing assumption: "Agile, redundant, interoperable and robust command and control 
(C2) creates the capability of supervisory control ('man on the loop') of UAS." 36 



282 



Darren M. Stewart 



The questions to be resolved by policymakers in the military application of UVS 
are set out in the Air Force's UAS Flight Plan as follows: 

Authorizing a machine to make lethal combat decisions is contingent upon political 
and military leaders resolving legal and ethical questions. These include the appropri- 
ateness of machines having this ability, under what circumstances it should be em- 
ployed, where responsibility for mistakes lies and what limitations should be placed 

upon the autonomy of such systems Ethical discussions and policy decisions must 

take place in the near term in order to guide the development of future UAS capabili- 
ties, rather than allowing the development to take its own path apart from this critical 
guidance. 37 

Quite apart from the ethical questions posed by the employment of autono- 
mous systems, perhaps the most overt extension of the application of UVS technol- 
ogy, there remain real concerns as to the ability of such weapons to comply with 
LOAC. The autonomous system's ability to distinguish a military objective from a 
protected person or object, and its ability to weigh the proportionality test in a 
holistic manner, 38 is yet to be adequately addressed. The question of accountability 
for the actions of autonomous systems also cries out for an answer and will be ad- 
dressed in Part III. 

The quest to develop the newest, best and most capable military technology (the 
Holy Grail of decisive effect) can often result in the relegation to the backseat of 
considerations as to whether such technology is not only needed but, indeed in a 
broader perspective, even desirable. 

Existing Legal Control Mechanisms 

As military technology development continues to progress at an unrelenting pace 
as States strive to achieve the next level of technological advantage over one an- 
other, how does the law cope with these new developments and seek to regulate 
them? AP I is clear in articulating those types of methods (including weapons) that 
are prohibited in armed conflict. 39 Indeed, the prohibitions contained in Article 
35(2) are relatively non-contentious, representing as they do the customary law on 
the subject. 40 Similarly, the provisions of Article 36 41 have been accepted, even by 
States who are not parties to AP I, as either reflective of best practice or as an obliga- 
tion flowing from the customary law norm articulated by Article 35(2) — although 
it is by no means as clear that Article 36 has the status of customary law. Not that 
Article 36 is particularly controversial in its terms, which require States to deter- 
mine the lawfulness of new weapons and means and methods of warfare. Rather, it 
is in the obligation to comply with its operation that disparate State practice seems 
to have developed. As Professor Jacobsson observes, "Unfortunately, very few 

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States undertake such an examination before employing new means and methods 
of warfare, despite the fact that the obligation relates to the initial stages, i.e., the 
'study' and 'development' of a new weapon." 42 

Proving Professor Jacobsson's assertion empirically is problematic, given that 
even those States, such as the United States, that have sophisticated weapons test- 
ing programs do not publish the results of their analyses. The very nature of certain 
new UVS technology will mean that not all States will even have the capacity to con- 
duct adequate testing were they to acquire the technology. Notwithstanding this, it 
can be assumed that those States that do possess the wherewithal to develop new 
technology should also have the concomitant ability to carry out the necessary 
analysis required by Article 36. Of course, given that it is arguable whether Article 
36 is declaratory of customary law, those States not party to AP I are under no 
specific obligation to comply with its provisions. However, as the sole purpose of 
the Article 36 requirement to assess LOAC compliance of new weapon systems 
prior to introduction relates to customary law obligations as codified in Article 35, 
it would appear a fortiori that best practice suggests a State would be prudent to en- 
sure that it is not in breach of its LOAC obligations by assessing the introduction of 
new weapons systems. Evidence of this approach can be seen in the existence of 
what is probably the most sophisticated assessment process for the introduction of 
new weapons carried out by a State — and this by a country that is not a State party 
to AP I, namely, the United States. 

It is another matter, however, whether the output from these reviews should be 
published. This is certainly not current State practice, notwithstanding the fact that 
there have been calls from a number of differing organizations for greater transpar- 
ency in the review of new weapon systems. These have ranged from representatives 
of States 43 to human rights institutions. 44 These arguments include questions of 
confidence measures in relation to international arms sales and exports in the case 
of States, or the characteristics of weapons systems and their effect on civilian pop- 
ulations in the case of human rights activists. What is consistent is the argument 
that there is a public right to know that the State that oversaw the development of 
the new technology giving rise to the production of a new weapon system correctly 
assessed its impact for LOAC compliance. 

This debate aside, it is clear that if the law is to keep pace with technological de- 
velopments, then it is through the weapons review process that the initial fitness- 
for-use test in LOAC terms can be established. While the requirement to carry out 
the test, whether as a binding legal obligation or as an exemplar of best practice, 
would appear to be entirely consistent with an approach illustrating the law's ability 
to keep pace with new technology, the concerns raised by an increasing number of 
interested parties within the international community over whether such reviews are 

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actually conducted would seem to give rise to justifiable concerns that this important 
component of LOAC application is not being given the effect it should have. 

The existence of new military technology, possessing capabilities far beyond 
those anticipated when the LOAC paradigm was first formally constructed in the 
nineteenth century, has resulted in calls that LOAC is no longer "fit for purpose" in 
fulfilling the role of regulating armed conflict and, in particular, providing protec- 
tion to those it is designed to protect. Increasing levels of weapon system automa- 
tion, coupled with claims that robots can behave "more humanely" than humans, 
create an uncomfortable juxtaposition of concepts leading to further reflection as 
to LOAC's suitability in its current guise. These calls fail to address the fact that, in 
part, LOAC does provide a framework to address these issues. In many senses it is 
the failure of States to apply the principles of AP I's Articles 35 and 36 in a consis- 
tent manner that results in a perception of new technology being allowed to 
proceed without any form of checks and balances. 

It is clear that in theory, if not in practice, adequate control mechanisms do exist 
to ensure LOAC compliance during the development and procurement phases. It 
is, however, appropriate to consider whether the changing character of weapons 
systems has had the effect of altering the applicable LOAC standards in terms of 
their employment. Part II will consider this question and whether calls for the de- 
velopment of LOAC to respond are warranted. 

Part II. Impacts on LOAC Standards Arising from New Technology 

The enhanced capabilities brought about through the development and employ- 
ment of the new technologies referred to in the preceding part bring with them not 
only the ability to achieve decisive effect on the battlefield but an unprecedented 
ability to give effect to the application of LOAC. The changing character of weap- 
ons means that militaries possessing the relevant capability can not only target with 
unprecedented precision but, in addition, through the use of sophisticated persis- 
tent surveillance, assess with much greater accuracy the anticipated effects of inci- 
dental loss or damage to civilian persons or property and take appropriate remedial 
measures. The cumulative effect of this has been to enable, in certain circum- 
stances, the achievement of much enhanced levels of protection for civilians by 
those nations employing such technology. 

It is important to note the qualification "certain circumstances" in the preced- 
ing paragraph. Notwithstanding the aspiration to be able to conduct targeting in an 
environment that is as controlled as possible, both the nature of armed conflict and 
in particular the confused and often ambiguous environment of land operations 
mean that the conditions necessary to fully exploit the capabilities that new 

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technology offers commanders and their staff are frequently not met. This is a partic- 
ularly challenging scenario in conflicts of a non-international character, where the 
blurring of the lines between civilian and military is a commonplace occurrence. 

What effect, then, has the changing character of weapons had on the standards 
to be applied by States who possess the types of advanced technology of which UVS 
are an example? Have technological advances resulted in the effect of Article 57 of 
AP I changing? 45 

Some academics, 46 and indeed State practice, 47 suggest that the requirement to 
take all feasible precautions in attack to minimize incidental loss of life to civilians 
and damage to civilian objects should be seen in the context of a subjective analysis 
based on capabilities available to the relevant commander. This will mean that 
where a commander's technological capabilities exceed those of his opponent, a 
higher standard in relation to precautions in attack will apply. There are, however, 
those who would argue that an entirely new legal standard is now possible and that 
LOAC should be amended so as to speak to the question of common but differenti- 
ated responsibilities. 48 

Common but Differentiated Responsibilities 

Professor Gabriella Blum argues that by comparing LOAC to international trade 
law or environmental law, parallels can be drawn between those regimes where dif- 
fering standards are applied to countries that have greater means than to those who 
do not. Or otherwise put: 

While the equal application of the law has formally endured in [international humani- 
tarian law], as in most spheres of international law, regulation has taken a different 
path in some areas of international law — most notably, international environment law 
("IEL") and international trade law ("ITL") — by linking obligations with capabilities. 
This linkage has been accomplished in several ways: by defining obligations with refer- 
ence to resources (such as ordering compliance by developed parties "to the fullest ex- 
tent possible"), exempting weaker parties from compliance with certain obligations 
altogether, and even ordering more powerful parties to extend material assistance to 
weaker ones. Taken together, these provisions have been termed Common but Differ- 
entiated Responsibilities ("CDRs") . . . , 49 

Taken in the context of new technology, the concept of CDRs, applied in a mini- 
malist sense, would support the extant requirement under LOAC for a State who 
possesses the technical capability to be obliged to consider its use as part of taking 
all feasible precautions in attack. In extremis, the CDR approach might well obli- 
gate States to share technology, where to do so would improve the overall level of 
protection afforded to the civilian population. Of course, the phenomena, often 



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Darren M. Stewart 



characterized by new technology, of enhanced precision and distinction are moti- 
vated more by military considerations than necessarily the ability to minimize inci- 
dental loss, which is a welcomed spin-off. In such circumstances the obligation to 
share technology as part of some form of CDR may well prove problematic, even 
counterproductive to the development of the types of new technology that enable 
greater LOAC compliance. Nor is there a positive obligation under LOAC for 
States to develop and employ new technology possessing such characteristics. 50 

Therefore, CDRs that go beyond the current LOAC construct would require 
either a basis in treaty or some form of development in the customary law. Neither 
would seem to be likely in the short to medium term, nor does there appear to be 
any need for this. The current LOAC principle of proportionality coupled with the 
requirement to take all feasible precautions in attack would appear to be perfectly 
adequate not only in recognizing the differing means available to parties to a con- 
flict, but in also requiring that higher standards be observed by those parties who 
can. The term "all feasible precautions" provides sufficient flexibility to address the 
relative disparities in capabilities between belligerents. As such, it can adequately 
accommodate the application of both extant and new technology. 

To create a structure that seeks to codify a set of CDRs in LOAC not only is un- 
necessary, but would be quite impossible to achieve — impossible in the context of 
being able to adequately define such CDRs under treaty law (to an extent that pro- 
vides any form of meaningful advance on the extant LOAC) and impossible in that 
State practice sufficient to point to such a development in customary law would be as 
elusive as the proverbial pot of gold at the end of a rainbow. Which State with the rel- 
evant capability is likely to conduct itself in a manner so as to create such practice? 

Professor Mike Schmitt underscores this fact in his reference to the existence of 
a state of normative relativism: 

[A]s the technological gap widens, the precautions in attack requirements operate on 
the belligerents in an increasingly disparate manner. After all, the standards are subjec- 
tive, not objective; a belligerent is only required to do what is feasible, and feasibility de- 
pends on the available technology. The result is normative relativism — the high tech 
belligerent is held to higher standards vis-a-vis precautions in attack than its opponent. 
It is, of course, normative relativism by choice because States are under no legal obliga- 
tion to acquire assets that will permit them to better distinguish between military ob- 
jectives and the civilian population. 51 

Evolution of Customary Law? 

Notwithstanding Schmitt's clear statement of where the current law places differ- 
ing obligations on belligerents (making the CDR approach somewhat moot), the 
recent International Committee of the Red Cross (ICRC) Interpretive Guidance on 

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the Notion of Direct Participation in Hostilities under International Humanitarian 
Law (DPH Study) 52 suggests that the ICRC view of the customary law position in 
relation to the use of force might in some limited manner support the premise be- 
hind CDRs. At chapter IX of the DPH Study the ICRC sets out its position on the 
permissible levels of force that may be used by parties to a conflict to achieve a military 
objective. It argues that technology can be determinative in defining the military 
necessity context within which particular levels of force are used. Indeed the DPH 
Study anticipates technology playing a limiting role where it provides the capability 
to achieve effect with the use of lower levels of violence. 

The DPH Study is not without its critics, particularly with respect to the posi- 
tion it takes in articulating the existing law in chapter IX. Much of the criticism fo- 
cuses on what is perceived as a conflation of a law enforcement paradigm 
governing the use of force under human rights law with the approach under 
LOAC, ignoring the accepted principle of lex specialist While it is not the place of 
this article to engage in a detailed debate of the DPH Study (the author would not 
be as critical as some commentators of the position articulated by the ICRC in 
chapter IX and finds much in the remainder of the study to commend it), it is con- 
ceivable that the DPH Study might be used to develop arguments in support of a 
CDR approach. Whether this is the intent of the DPH Study or not, there is a need 
to consider the consequences of such arguments on LOAC, particularly with refer- 
ence to proportionality and precautions in attack. This is not a debate that impacts 
purely on questions of distinction and therefore is of questionable value in forming 
part of a discrete study on direct participation in hostilities. 

Any consideration of the impact of new technology on LOAC standards runs 
the risk of being seduced by the same scenario that creates exaggerated perceptions 
of what new technology can deliver in terms of effect on the battlefield. Such a per- 
ception drives the argument that the law has failed to keep pace with change, is 
therefore redundant and requires change. However, such an approach fails to ac- 
knowledge the operation of LOAC as a flexible system in which the latest techno- 
logical advances can be adequately accommodated without the need for root-and- 
branch change to the law. Professor Christopher Greenwood, writing in 1998, 
identified this quality as the key strength of LOAC: 

The flexibility of the general principles thus makes them of broader application than 
the specific provisions which are all too easily overtaken by new technology. If the 
speed of change in military technology continues into the next century (as seems al- 
most inevitable), that capacity to adapt is going to be ever more important. 54 



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Darren M. Stewart 



Greenwood's assertion is, of course, predicated upon the assumption that the 
pace of technological development will make specific attempts to regulate particu- 
lar developments either susceptible to redundancy, or reflective of a piecemeal at- 
tempt to ban individual weapons. 55 When one couples the AP I requirement to 
assess the implementation of new technology for the purposes of LOAC compli- 
ance in conjunction with the extant customary law obligations to assess propor- 
tionality and take all feasible precautions in attack, it is hard not to agree with 
Greenwood when he states: 

In this writer's opinion, it is both more probable and more desirable that the law will 
develop in this evolutionary way than by any radical change. With the law of weaponry, 
as with most of the law of armed conflict, the most important humanitarian gain 
would come not from the adoption of new law but the effective implementation of the 
law that we have. That should be the priority for the next century. 56 

If one accepts that the extant LOAC paradigm is adequate in addressing issues 
arising from both the development and employment of new technology, then it is 
right to consider whether the final part of the LOAC system — accountability — is 
similarly well placed to cope. Part III will consider the changing character of weap- 
ons and whether the LOAC accountability paradigm can adequately address the is- 
sues that arise from new technology. 

Part III. Implications for Accountability 

When considering new technology and its military application, any analysis will 
invariably turn to the question of accountability. While mechanization of the bat- 
tlefield is neither new, nor something the international law dealing with criminal 
responsibility is unaccustomed to addressing, the potential for autonomous 
weapon systems to effectively remove the human, either from the loop or even on 
the loop, poses challenges. 

Remotely Controlled and Automated Systems 

The question of accountability in the case of tele- or remotely operated vehicles is 
relatively straightforward. An operator controls the device and as a consequence 
the actions of that device can be attributed to that operator, or indeed to his/her 
commander in the context of directing action that constitutes a breach of LOAC or 
where the commander fails to act to either prevent or punish LOAC breaches. 

Similarly, even automated systems will generally be employed within either a 
context that is controlled by humans, directing the vehicle to a particular task, or 



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New Technology and the Law of Armed Conflict 



one in which humans can intervene in the event that the device were to act outside 
its mission or the permitted LOAC paradigm. The premise underpinning automa- 
tion is that the operation of the relevant device is capable of being accurately pre- 
dicted based on the programming and commands inputted. 

Barring deviant behavior, on behalf of either the computer programmer or op- 
erator, it can be assumed that the vehicle will generally act within the permitted le- 
gal framework. Of course malfunction can never be excluded, nor can the 
consequences of ambiguity on the battlefield. However, there is generally sufficient 
nexus of control or operation in the cases of both remotely operated and auto- 
mated vehicles such that the international criminal law can attribute accountability 
for culpable behavior in cases of LOAC violations. 

Autonomous Systems 

This equation becomes much more problematic in the case of autonomous sys- 
tems. The very nature of autonomous systems implies that they have an artificial 
intelligence capable of analyzing information, determining a course of action 
based on this analysis and then executing that response, all without the interven- 
tion of a human operator. The operation of the autonomous device creates consid- 
erable challenges for the would-be LOAC violation prosecutor in terms of 
establishing the relevant nexus of culpable behavior by a human such as to give rise 
to criminal liability. The tele-operator of remotely controlled vehicles or even the 
command programmer for automated equipment can both be seen as having di- 
rect roles in determining the actions of the devices they control. They are capable of 
direct responsibility, even if that control is exercised at distance — sometimes a 
considerable one. 57 

This cannot be said of those involved with autonomous systems. Neither the 
programming nor the command data inputted to these vehicles prior to their de- 
ployment on a particular operation will necessarily result in a specific outcome in 
response to any given set of circumstances; this is the essence of autonomy. Absent 
the aberrant behavior of either the data or command programmers, which would 
be considered in the same context as for remotely or automated vehicles, it would 
be almost impossible to attribute the autonomous system's behavior directly to a 
particular human. That is not to say autonomous vehicles are incapable of LOAC 
breaches. Indeed, even the most ardent supporters of autonomous systems do not 
argue that breaches can be completely removed, just that autonomous systems can 
perform better (including more ethically) than humans. 58 

The notion of accountability is of course a uniquely human one. Under any sys- 
tem of law the commission of a crime (such as a breach of LOAC) should give rise 
to an investigation and where sufficient evidence exists, the prosecution of the 

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Darren M. Stewart 



alleged perpetrator. What happens then when the perpetrator is incapable of being 
prosecuted because it is a machine? Other than reprogramming or scrapping 
equipment there is little point in carrying out a futile exercise of finding the rele- 
vant piece of equipment guilty of a LOAC breach. Such a scenario offends not only 
the notion of the rule of law, but also the more visceral human desire to find an in- 
dividual accountable. Given this, it would appear highly unlikely that a breach of 
LOAC by an autonomous system is something that would go without some degree 
of human accountability. Indeed there is a strong argument that States should not 
be able to employ such systems and rely upon the relative impunity with which 
their operations might be conducted in the event that the question of accountabil- 
ity fails to be resolved. 

States and Commanders in the Dock 

There are, of course, two alternative means of accountability: State responsibility 
under human rights mechanisms and command responsibility. 

To take these in order: The extent to which States will be held responsible for 
what might constitute a human rights violation that is equally one under LOAC 
will depend on not only the character of the conflict concerned, 59 but also the re- 
spective State obligations under international human rights law. This will produce 
significantly disparate effects in terms of sanctions, e.g., in the case of States who 
are parties to the European Convention on Human Rights as compared to that of 
those States who have obligations under the International Covenant on Civil and 
Political Rights alone. This is largely due to the enforcement mechanisms in place 
in relation to each of these treaty structures. While this difference may well have an 
impact on the formal aspects of enforcement (e.g., court rulings and pecuniary 
awards against States in the case of the former), one cannot avoid the implications 
for States that flow from judgments of courts like the European Court of Human 
Rights and Inter- American Court of Human Rights, or bodies such as the United 
Nations Human Rights Council. Such pronouncements, influencing as they do in 
the age of mass communication the court of public opinion, may well have a deter- 
mining effect on the preparedness of States to employ autonomous systems ahead 
of the creation of any corresponding permissive environment, whether this be po- 
litical or social. 

Perhaps one of the unintended consequences of the development of autono- 
mous weapons systems is the potential that they may have to focus greater atten- 
tion on civilian leadership and military commanders at the operational or strategic 
level for the actions of autonomous systems. It is useful here to remind oneself that 
the increased levels of sophistication and complexity that new technology intro- 
duces to the battlefield are part of a systemic approach to leveraging technology to 

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New Technology and the Law of Armed Conflict 



achieve decisive effect. As such, any future employment of autonomous systems 
must be seen in this context. It would be naive, therefore, to think of circumstances 
where a commander would allow the deployment of autonomous weapon systems 
in a manner where their operation was not in accordance with his or her particular 
campaign design and where the purpose behind the use of these systems would not 
be to achieve consistent, predictable effect. 

Given the unpalatable outcome of alleged breaches of LOAC going unpunished, 
it is far more likely that in the future the concept of command responsibility under 
international criminal law will be seen as an appropriate recourse for attributing 
accountability for LOAC breaches by autonomous systems. The arguably lower 
threshold test in terms of culpability for command responsibility contained within 
the Rome Statute, 60 requiring merely that a commander "should have known" of 
the possibility of the alleged breach of LOAC, places in sharp focus a commander's 
potential liability. This is particularly the case in circumstances where the removal 
of subordinates in the command chain results in fewer individuals who might 
otherwise be accorded the substantial responsibility for LOAC breaches. 

It remains to be seen whether this increased risk is a "real" one or whether it is 
no different than that which exists in cases where such systems are not employed. It 
is, however, a consequence that has received little, if any, attention from legal ad- 
visers in armed forces. It is certainly deserving of greater consideration. Such atten- 
tion should focus not only on the technical aspects of attributing responsibility 
based on the requisite elements of offenses being satisfied, but on the broader pub- 
lic policy issues associated with the possibility of military operations being 
conducted in a "blameless environment." 

Conclusion 

In one sense, the changing characters of weapons and armed conflict, seen in the 
specific context of unmanned vehicles and systems, represent nothing more than 
the natural evolution of technology in its application to the battlefield. However, in 
other respects the introduction of new technology creates challenges for the appli- 
cation of LOAC, if only in the sense that what is unusual or different is often seen as 
complex and difficult. 

This article posed the question of whether the changing character of weapon 
systems, including unmanned systems and vehicles, is such as to question the abil- 
ity of LOAC to adequately cope with the introduction of new technology to the 
battlefield. 

Fundamental to this question is the consideration of new technology in the con- 
text within which it is to be employed. New technology often has a symbiotic 

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Darren M. Stewart 



relationship with the evolution of new tactics and stratagems. The capabilities it 
brings to the battlefield have aided in shaping new approaches to the practice of the 
"art of war." It is important to remind oneself in this respect that the tail should not 
be wagging the dog. Enhanced capability and new hardware, bewildering as they 
are in the scope and reach of their effects, should be seen as means to an end, not 
ends in themselves. 

Just as military doctrine has demonstrated its flexibility in coping with the re- 
lentless development and introduction of new technology, LOAC has provided — 
and will continue to provide — a framework for the regulation of armed conflict. 
Calls to create new standards or to interpret the law in ways that seek to regulate the 
unknown, or at least the not yet known, do not stand up against an assessment of 
what LOAC provides in terms of a system of law that regulates not just the intro- 
duction of new technology, but also its application. 

Useful processes, such as those forming part of the AP I Article 36 weapons re- 
view, seem purpose designed not only to act as initial control valves to ensure that 
military methods and means can advance in a coherent and effective manner but 
also to act as red flags to possible LOAC issues associated with the employment of 
new technology. It is unfortunate that too few States engage actively in the weapons 
review process, an area where greater effort to comply with the law should occur. 

Generally the existing LOAC rules would seem sufficiently flexible to adapt to 
the deployment of new technology on the battlefield. In many respects new tech- 
nology has greatly aided the application of LOAC and contributed to an increase in 
the protection of civilians. In this sense, the story is a good news one. The extant 
LOAC paradigm has responded in a flexible manner, benefiting from the positive 
synergies afforded by technological advances. The virtue of such a system, 
however, comes with compliance rather than the creation of new standards or 
responsibilities, such as CDRs, or use of the capabilities afforded by new technol- 
ogy to argue that a human rights paradigm is more appropriate. Armed conflict 
continues to be an unpredictable, often base affair, where significant ambiguity 
prevails, notwithstanding the employment of considerable technological capabil- 
ity. The benefits afforded by new technology in such circumstances are significant 
if they can ameliorate even some of the suffering caused by armed conflict, but they 
are by no means a panacea. 

New technology creates its own challenges in the context of accountability, par- 
ticularly with respect to autonomous systems. The perverse effect for States and the 
senior civilian and military command echelon who promote the development and 
implementation of new technology as a means of "casualty free" warfare is that 
they may well find themselves with nobody to stand between the actions of such 
autonomous systems and themselves when things go wrong. It is hoped that the 

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New Technology and the Law of Armed Conflict 



associated discomfiture from this realization may well act in a positive capacity to 
focus minds as to the need for such new technology, and manner in which it is 
employed. 

Consider the mutually assured destruction scenario, which hung over the world 
during the Cold War and led to the notion that nuclear weapons should be treated 
as a "special case." This was largely due to the nature of such weapons, dehu- 
manizing war and giving rise to massive destruction on a wide-scale basis. Autono- 
mous weapons systems as an example of the changing character of weapons may 
not involve such destruction; indeed one of the consequences of their use is that it 
avoids such a scenario. However, an increasing reliance upon technology clearly 
has the potential to dehumanize armed conflict, creating a perception of low or no 
risk and, in doing so, possibly convincing States of the viability of the recourse to 
the use of force to resolve disputes. 

In the face of this, LOAC continues to offer a balanced, civilizing effect as part of 
a system of law providing a broad regulatory framework intended to afford protec- 
tion to the most vulnerable. In this context, flexibility (of course coupled with 
compliance) is its greatest strength. Whether the current developments in technol- 
ogy will constitute a "watershed" or defining moment in the evolution of warfare 
remains to be seen. What is clear is that LOAC is capable of keeping pace and con- 
tinuing to meet its mission of protection and humanity. 

Notes 

1. Michael Ignatieff, Virtual War: Kosovo and Beyond 161 (2000). 

2. United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict ^ 1.8 
(2004) [hereinafter UK LOAC Manual]. 

3. Jd., 16.1.4. 

4. See id. at 66-80 for an analysis of prohibited methods of warfare. 

5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3 [hereinaf- 
ter API]. 

6. Gabriella Blum, On a Differential Law of War, 52 HARVARD INTERNATIONAL LAW 
JOURNAL 163 (2011). 

7. Office of the Secretary of Defense, Department of Defense, FY2009-2034 Unmanned 
Systems Integrated Roadmap (2d ed. 2009), available at http://www.acq.osd.mil/psa/docs/ 
UMSIntegratedRoadmap2009.pdf [hereinafter DoD/OSD Roadmap]. 

8. Id., Annex H, at 193. 

9. Michael Franklin, Unmanned Combat Air Vehicles: Opportunities for the Guided Weap- 
ons Industry?, Sept. 2008, available at http://www.rusi.org/downloads/assets/Unmanned_Combat 
_Air_Vehicles.pdf. 

10. Id. at 3. 

11. Julian Stinton, The 'Find' Function - An Airman's Personal View, RUSI DEFENCE 
SYSTEMS, Feb. 2009, at 57, 59. 

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Darren M. Stewart 






12. Brian Burridge, Post-Modern Warfightingwith Unmanned Vehicle Systems - Esoteric Chi- 
mera or Essential Capability?, RUSI JOURNAL, Oct. 2005, at 20. 

13. Norman Friedman, UCAVs: A New Kind of Air Power?, RUSI DEFENCE SYSTEMS, June 
2010, at 62, 63. 

14. Franklin, supra note 9, at 3 (the UAV operators are located at Creech Air Force Base, In- 
dian Springs, Nevada). 

15. DoD/OSD Roadmap, supra note 7. 

16. Id. at 4, Table 1. 

17. Jack M. Beard, Law and War in the Virtual Era, 103 AMERICAN JOURNAL OF INTERNA- 
TIONAL LAW 409, 413 (2009), available at http://www.law.georgetown.edu/faculty/userfiles/file/ 
foreign%20relations%20law%20colloquium/Beard_first_proofs_(7-13-09).pdf. 

18. Mat 411. 

19. DoD/OSD Roadmap, supra note 7, at 10, Table 4. 

20. Mat 11-12, Table 5. 

21. Burridge, supra note 12, at 20. 

22. Claire Button, Unmanned Aerial Vehicles on Operations: Overcoming the Challenges, 
RUSI DEFENCE SYSTEMS, June 2009, at 76. 

23. Id. at 77. 

24. Simon Deakin, Joint Fires - The Challenges to Come, RUSI DEFENCE SYSTEMS, Feb. 2010, 
at 82, 84. Loitering munitions are small cruise missiles that can be launched and left to "loiter" or 
"stack" for calling forward and being designated on target when it appears. 

25. For a discussion of Brimstone's capabilities, see Libya: RAF Unleashes Hellfire and Brimstone, 
DEFENSEMANAGEMENT.COM (Mar. 10, 2011), http://www.defencemanagement.com/feature_story 
.asp?id=16132. 

26. James Masey, From Pack Mules to Fighting Scouts, RUSI DEFENCE SYSTEMS, Oct. 2007, at 
40,41. 

27. Samsung Techwin SGR-A1 Sentry Guard Robot, http://www.globalsecurity.org/military/ 
world/rok/sgr-al.htm (last visited Sept. 10, 2010). 

28. A concept model of a pilotless combat aircraft was unveiled by China Aviation Industry 
Corporation I (CAIC1) during the 6th International Aviation and Aerospace Exhibition held 
in Zhuhai on China's southern coast. The aircraft, dubbed "Anjian" (Invisible Sword), is being 
designed by CAICl's Shenyang Aeroplane Design Institution for future aerial combat according 
to an introduction by CAIC1. Invisible Sword: China's Pilotless Aircraft, CHINA VIEW, http:// 
news.xinhuanet.com/english/2006-10/31/content_5270824.htm (last visited Sept. 5, 2010). 

29. Pentagon Cyborg-insect Program Could Save Quake Victims, CAFESENTIDO.COM (July 14, 
2009), http://www.casavaria.com/cafesentido/2009/07/14/3579/pentagon-cyborg-insect-program 
-could-save-quake-victims/. 

30. Boston Engineerings Ghost Swimmer SUV Spotted in the Wild, MASSHIGHTECH.COM 
(Aug. 24, 2009), http://www.masshightech.com/blog/tag/boston-engineering/. 

3 1 . Nano Air Vehicle, LOCKHEEDMARTIN.COM, http://www.lockheedmartin.com/products/ 
nano-air-vehicle.html (last visited Sept. 5, 2010). 

32. Professor Ron Arkin is the Director of the Mobile Robot Laboratory, Georgia Institute of 
Technology, Atlanta, Georgia. 

33. Ronald C. Arkin, Governing Lethal Behavior in Autonomous Robots 16 

(2009). 

34. DoD/OSD Roadmap, supra note 7, at 10. 

35. Headquarters, United States Air Force, United States Air Force Unmanned Aircraft Sys- 
tems Flight Plan 2009-2047 (May 18, 2009). 



295 



New Technology and the Law of Armed Conflict 



36. Id. at 14. 

37. Id. at 41. 

38. That is, other than to simply attempt to predict the expected number of casualties and 
then determine engagement on the basis of whether the number is less than or exceeds a given 
programmed benchmark. 

39. AP I, supra note 5, art. 35 (Basic rules): 

1 . In any armed conflict, the right of the Parties to the conflict to choose methods or 
means of warfare is not unlimited. 

2. It is prohibited to employ weapons, projectiles and material and methods of war- 
fare of a nature to cause superfluous injury or unnecessary suffering. 

3. It is prohibited to employ methods or means of warfare which are intended, or may 
be expected, to cause widespread, long-term and severe damage to the natural environ- 
ment. 

40. Cf. AP I, id., art. 35(3). The United States, United Kingdom and France are to varying de- 
grees persistent objectors to the adoption of this principle as a norm of customary IHL. 

41. Id., art. 36 (New weapons): 

In the study, development, acquisition or adoption of a new weapon, means or method 
of warfare, a High Contracting Party is under an obligation to determine whether its 
employment would, in some or all circumstances, be prohibited by this Protocol or by 
any other rule of international law applicable to the High Contracting Party. 

42. Marie Jacobsson, Modern Weaponry and Warfare: The Application of Article 36 of Addi- 
tional Protocol I by Governments, in THE LAW OF WAR IN THE 2 1ST CENTURY: WEAPONRY AND 
THE USE OF FORCE 184 (Anthony M. Helm ed., 2006) (Vol. 82, US Naval War College Interna- 
tional Law Studies). 

43. Id. at 189. Jacobsson states the aspiration that "[t]here are a number of critical issues that 

need to be addressed at an international level [Gjiven the obligation imposed on all States to 

evaluate the legality of the weapons used, it is reasonable to discuss the matter in a multilateral 
context." 

44. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 
Study on Targeted Killings, Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 
2010) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/ 
14session/A.HRC. 14.24.Add6.pdf. In it, Alston addresses the questions of transparency and ac- 
countability. Id., 1ffl 87-92. 

Although the report focused on the use of drones in the context of targeted killings, Alston's 
comments on transparency would appear to have much wider implications for the introduction 
of new technology. In paragraph 89 he refers to not only an obligation to take steps to consider 
the effects of weapons to be used but an obligation for States to disclose such procedural safe- 
guards. Reference is made to the HPCR Commentary in support of this assertion. HARVARD 
PROGRAM ON HUMANITARIAN POLICY AND CONFLICT RESEARCH, COMMENTARY ON THE 
HPCR MANUAL ON INTERNATIONAL LAW APPLICABLE TO AIR AND MISSILE WARFARE rule 32(c) 
(2009), available at http://ihlresearch.org/amw/Commentary%20on%20the%20HPCR%20Manual 
.pdf. 

While the Commentary articulates the requirements for precautions in attack, it does not sup- 
port the contention that procedural safeguards taken by States to give effect to this obligation are 
required to be disclosed. There is little evidence to support Alston's assertion. As a consequence 
it must be viewed as an aspiration similar to that articulated by Jacobsson, supra note 42. 

45. AP I, supra note 5, art. 57 (Precautions in attack) provides as follows: 



296 



Darren M. Stewart 



1 . In the conduct of military operations, constant care shall be taken to spare the civil- 
ian population, civilians and civilian objects. 

2. With respect to attacks, the following precautions shall be taken: 

(a) those who plan or decide upon an attack shall: 

(i) do everything feasible to verify that the objectives to be attacked are nei- 
ther civilians nor civilian objects and are not subject to special protection but 
are military objectives within the meaning of paragraph 2 of Article 52 and that 
it is not prohibited by the provisions of this Protocol to attack them; 
(ii) take all feasible precautions in the choice of means and methods of attack 
with a view to avoiding, and in any event to minimizing, incidental loss of ci- 
vilian life, injury to civilians and damage to civilian objects; 
(iii) refrain from deciding to launch any attack which may be expected to cause 
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a 
combination thereof, which would be excessive in relation to the concrete and 
direct military advantage anticipated; 

(b) an attack shall be cancelled or suspended if it becomes apparent that the objec- 
tive is not a military one or is subject to special protection or that the attack may be 
expected to cause incidental loss of civilian life, injury to civilians, damage to civil- 
ian objects, or a combination thereof, which would be excessive in relation to the 
concrete and direct military advantage anticipated; 

(c) effective advance warning shall be given of attacks which may affect the civilian 
population, unless circumstances do not permit. 

3. When a choice is possible between several military objectives for obtaining a similar 
military advantage, the objective to be selected shall be that the attack on which may be 
expected to cause the least danger to civilian lives and to civilian objects. 

4. In the conduct of military operations at sea or in the air, each Party to the conflict 
shall, in conformity with its rights and duties under the rules of international law appli- 
cable in armed conflict, take all reasonable precautions to avoid losses of civilian lives 
and damage to civilian objects. 

5. No provision of this article may be construed as authorizing any attacks against the 
civilian population, civilians or civilian objects. 

46. Michael N. Schmitt, War, Technology and the Law of Armed Conflict, in THE LAW OF 
WAR IN THE 21ST CENTURY, supra note 42, at 137. 

47. UK LOAC Manual, supra note 2, at 85. The Manual supports this contention by stating 
that in assessing whether a decisionmaker has discharged his responsibilities in terms of precau- 
tions in attack, "[t]his means looking at the situation as it appeared to the individual at the time 
when he made his decision." When taken in conjunction with the factors listed at page 83, which 
include the weapons available, it is clear that UK State practice requires a subjective judgment on 
behalf of a decisionmaker taking into account any enhanced technological advantage in weapons 
he may possess. There is no obligation to use such weapons; however, the fact that they were 
available will count toward whether the decisionmaker took all feasible precautions. 

48. See, e.g., Blum, supra note 6. 

49. Id. 

50. yoram dinstein, the conduct of hostilities under the law of international 
Armed Conflict 126-27 (2004). 

51. Schmitt, supra note 46, at 163. 



297 



Sew Technology and the Law of Armed Conflict 



LZER, INTERNATIONAL CONLMITTEE OF THE RED CROSS, INTERPRETIVE 

Gur ? Direct Participation in Hostilities under International 

■ lANTTAlUAN Lav. 77-92 2 

W. Havs Parks, Part IX of the ICRC "Direct Participation in Hostilities" Stud) . No A 

and Lee 12 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL 

LAW/ 5765 797-99, ava U abit athttpc www.law.nyu.edii:' ecm_dlv2 groups/public/ 

cbsite k>unials_^urnal_of_international_la\v_and_politicsy dc>cuments/ documents 

_pro_065930.pdf. 

Christopher Greenwood, 1 I rfo Sfiirf o/ffie NSnv Millennium, in 

THE lA¥ \FLICT: INTO THE NEXT MILLENNIUM 185, 221 Michael N. Schmitt & 

Leslie C. Green eds., 1998) (Vol 71, US Naval War College International Law Studies). 

55 ELg die Convention on the Prohibition of the Use, Stockpiling, Production and Transfer 
nnel Mines and on Their Destruction, Sept. 18, 1997, 2056 U.X.T.S. 211 and the 
Convention on Cluster Munitions, Dec 3, 2 - - - International Legal Materials 357 2 09). 
: - Greenwood, supra note : - III 
5 1 Franklin, supra note 9, at 3. 

58. AKIN, supra note 33, at 16. 

59. Human rights law will continue to apply in times of armed conflict, subject to the appli- 
cation of the lex specialis rule in relation to LOAC or where States have made derogations under 
applicable treat: 

60. Rome Statute of the International Criminal Court, July 17, 1998,2187 U.X.T.S. 90. Arti- 
cle 21 Res r onsibility of commanders and other superiors i provides as follows: 

In addition to other grounds of criminal responsibility under this Statute for crimes 
within the jurisdiction of the Court 

(a) A military commander or person effectively acting as a military commander shall 
be criminally responsible for crimes within the jurisdiction of the Court committed by 
forces under his or her effective command and control, or effective authority and con- 
trol as the case may be, as a result of his or her failure to exercise control properly over 

h forces, wh i 

(i) That military commander or person either knew or, owing to the circum- 
stances at the time, should have known that the fore jommitting or about to 
commit such crimes; and 

(ii) That military commander or person failed to take all necessary and reasonable 
measures within his or her power to present or repress their commission or to sub- 
mit the matter to the competent authorities for investigation and prosecution. 

(b) With respect to superior and subordinate relationships not described in paragraph 
i i superior shall be criminally responsible for crimes within the jurisdiction of the 

Court committed by subordinates under his or her effective authority* and control, as a 
result of his or her failure to exercise control properly over such subordinates, where: 

(i) The superior either knew, or consciously disregarded information which 
clearly indicated, that the subordinates were comniitting or about to commit such 
crimes; 

The crimes concerned activities that were within the effective responsibility 
and control of the superior, and 

The superior failed to take all necessary and reasonable measures within his or 
her power to prevent or repress their commission or to submit the matter to the 
competent authorities for investigation and prosecution. 



298 



PART VII 



THE CHANGING CHARACTER OF TACTICS: 
LAWFARE IN ASYMMETRICAL CONFLICTS 



XI 



The Law of Armed Conflict in Asymmetric 
Urban Armed Conflict 



David E. Graham* 

Introduction 



At the conference from which this "Blue Book" is derived, I served as the 
moderator of a panel entitled "The Changing Character of Tactics: Lawfare 
in Asymmetrical Conflicts." This reflects an apparent assumption: that tangible 
changes have occurred in the tactics now being used by States in waging armed 
conflicts of an asymmetric nature. 

In offering some thoughts of my own on this subject, I turn to the pivotal 
questions posed to the panel. "Is this a valid assumption? And, if so, have such 
changes in tactics occurred within the context of the historically accepted norms 
of the Law of Armed Conflict (LOAC), or do these tactical modifications repre- 
sent a fundamental shift in the manner in which the customary and codified 
LOAC is now being both interpreted and applied to these conflicts by the interna- 
tional community?" 



* Colonel, US Army (Ret.); Executive Director, The Judge Advocate General's Legal Center and 
School, US Army. The author has prepared this article in his personal capacity and does not pur- 
port to represent the views of the Department of Defense, the Department of the Army or The 
Judge Advocate General's Legal Center and School. 



The Law of Armed Conflict in Asymmetric Urban Armed Conflict 

The Goldstone Report: Has There Occurred a Fundamental Interpretive 
Change in the Applicability of the Law of Armed Conflict to Asymmetric Urban 

Armed Conflict Scenarios? 

There currently exists a widespread assumption that a change has occurred in the 
tactics now being used by States to wage asymmetric conflicts. If this is true, do 
these tactics, nevertheless, continue to reflect a traditional application of the LOAC 
to such conflicts? Or, instead, are these tactical changes being driven, in fact, by a 
substantial shift in the manner in which the international community has chosen 
to interpret the application of fundamental LOAC principles to such scenarios? 

The focus will be on a very specific type of asymmetric conflict — one involving a 
State on the one hand and a non-State entity on the other — and, even more specifi- 
cally, asymmetric armed conflict between a State and a non-State entity in essen- 
tially, if not exclusively, an urban environment. Why is the question focused so 
narrowly, and why do I consider this subject to be one that has recently taken on 
increasing importance? 

Certainly, it is true that, for almost a decade, US and coalition forces have been 
involved in ongoing and seemingly unending conflicts increasingly waged in 
densely populated urban areas. Both Iraq and Afghanistan have seen extensive 
fighting occur in urban settings as the US and its coalition partners have con- 
fronted both State and various non-State entities in the form of the Taliban and el- 
ements of al Qaeda in these theaters of operation. In this age of "persistent 
conflict," the chances are great that the United States will continue to see its forces 
consistently having to deal with such fighting environments. In brief, asymmetric 
State/non-State urban conflicts — and, importantly, all of the LOAC issues associ- 
ated with such conflicts — have been a part of the international landscape for an 
extended period of time. 

Given this reality, then, why is it that I now believe it to be an imperative that the 
United States and other States that may well find themselves involved in these types 
of conflicts fully examine the matter of whether a fundamental shift has occurred 
in the manner in which some of the most well established principles of the LOAC 
will be applied to an armed force's future use of force against a non-State entity in 
an urban setting? Again, why now? 

The answer to this question resides in the form of something called the Gold- 
stone Report. 1 Many are familiar with this report. It would appear, however, that 
little consideration has been given to its contents in the context of the matter at 
hand — its potentially adverse impact on the future applicability of the LOAC to the 
types of conflict in issue. 



302 



David E. Graham 



The Goldstone Report, issued in September 2009, is the product of the United 
Nations Fact-Finding Mission on the Gaza Conflict, established, interestingly 
enough, by the President of the UN Human Rights Council in April 2009. Its man- 
date was "to investigate all violations of international human rights law and inter- 
national humanitarian law that might have been committed at any time in the 
context of the military operations that were conducted in Gaza during the period 
[between] December 27, 2008 and January 18, 2009, whether before, during or 
after." 2 The military operations being referenced were, of course, those of the Israeli 
Defence Force's (IDF's) Operation Cast Lead, taken primarily in response to mor- 
tar and rocket attacks launched against Israel by the Palestinian organization 
Hamas from within Gaza (some 12,000 attacks in the previous eight years). 3 

The four-member Goldstone mission was headed by Justice Richard Goldstone, 
a former judge of the Constitutional Court of South Africa and former president of 
the international criminal tribunals for the former Yugoslavia and Rwanda. The 
other three appointed members were a professor of international law at the Lon- 
don School of Economics and Political Science, an advocate of the Supreme Court 
of Pakistan, and a former officer in Ireland's Defence Forces. 4 

From the very outset of its work, the mission stated that it would interpret its 
mandate as requiring that it place the civilian population of the region at the center 
of its concerns regarding violations of international law, 5 an interpretive decision 
that was to prove to be of no small consequence, particularly from the standpoint 
of the appropriate applicability of LOAC. Also key to the mission's approach was 
its determination that, in keeping with its mandate, it was required to consider any 
action that might be deemed a violation of either international human rights law or 
international humanitarian law 6 (a popularized, but duplicative and misleading 
term said to incorporate both the customary and codified LOAC). 

This latter determination is a matter of particular concern, as it serves to assert 
the historically controversial, and, I would submit, erroneous, contention that hu- 
man rights law applies coequally with the LOAC during periods of armed conflict. 
That is, the assertion is that the LOAC is not lex specialis — that it is not that body of 
law that exclusively regulates the methods and means of conducting conflict. In- 
deed, a number of the mission's allegations of offenses said to have been commit- 
ted by the IDF are based exclusively on presumed violations of human rights law — 
not the LOAC. 

If left unchallenged, this particular contention alone would represent a substan- 
tial shift in the potential legal obligations and responsibilities of combatants on any 
battlefield and in any form of conflict, and could portend, as well, a significant en- 
hancement of the potential criminal liability of such individuals. They could now 



303 



The Law of Armed Conflict in Asymmetric Urban Armed Conflict 

be charged with largely undefined "human rights" violations, rather than viola- 
tions of the well-established customary or codified LOAC. 

Setting aside this particular issue, this attempt to conflate the LOAC with human 
rights law, let me turn, in more detail, to an examination of the manner in which 
the mission chose to apply some of the most basic provisions of the LOAC, itself. 
And, with an apology to those who are fully conversant with this body of law, in 
order to assess the mission's "unique" application of this law to the conflict in 
Gaza, it is useful to review what have been long regarded as universally recognized 
LOAC principles/precepts binding on every State in the international community. 
These are: 

1. "Military necessity (advantage)." This principle authorizes those use-of- 
force measures, not otherwise forbidden by the LOAC, required to ac- 
complish a mission. The important caveat, here, of course, is that this 
principle must be applied in conjunction with the other customary 
LOAC principles, as well as with more specific constraints contained in 
the codified LOAC. 

2. "Distinction/discrimination." This principle requires that combatants 
be distinguished from non-combatants and that military objectives be 
distinguished from protected property and protected places — that is, 
civilian property and protected places such as cultural, medical and reli- 
gious sites. 

3. "Proportionality." This principle serves as a balancing fulcrum, weighing 
the competing principles of "military necessity" and "distinction" when 
making a targeting decision. The proportionality test — "the anticipated 
loss of life and damage to property incidental to an attack must not be 
excessive in relation to the 'concrete' and 'direct' military advantage 'ex- 
pected' to be gained" 7 — introduces the idea of a "reasonable com- 
mander" making proportionality determinations, and is akin to the 
"reasonable man" test. That is, would a "reasonable commander," i.e., a 
commander of ordinary sense and understanding, given the facts known 
to him at the time, have been justified in taking the action in issue? 

4. "Unnecessary suffering." The last of the four basic customary LOAC 
principles requires an armed force to minimize "unnecessary suffering." 
In essence, this applies to the legality of the types of weapon systems and 
ammunition used, as well as to the legality of the methods used to employ 



304 



David E. Graham 



such weapons and ammunition. Certain weapons/munitions are per se 
unlawful — projectiles filled with glass, lasers specifically designed to 
permanently blind unenhanced vision and hollow-point ammunition. 
For purposes of this discussion, it is also important to recall that, as 
noted, even lawful weapon systems can be used in an unlawful manner. 
That is, the use of a weapon must comport with the lawful "methods" of 
conducting conflict. 8 

One last point must be considered before moving to an examination of the 
manner in which these most fundamental principles of the LOAC were applied by 
the Goldstone mission to Operation Cast Lead. To what types of armed conflict 
does the LOAC apply? The answer to this question is found in Common Articles 2 
and 3 of the 1949 Geneva Conventions. 9 

Article 2 defines international armed conflicts as "all cases of declared war or 
any other armed conflict which may arise between two or more of the High Con- 
tracting Parties [to this Convention], even if the state of war is not recognized by 
one of them" — that is, State-on-State conflict. 

Article 3 applies the LOAC to conflicts not of an international character, defined 
as conflicts "not of an international character occurring in the territory of one of 
the High Contracting Parties [to this Convention] ." That is, they are "internal con- 
flicts" — revolutions, rebellions, insurrections — occurring within the territorial 
boundaries of a State, ones involving a non-State entity (insurgents) attempting to 
displace the constituted government of a State by force. 

With this as background, let's examine just several examples of the manner in 
which the Goldstone mission applied the LOAC to actions taken primarily by the 
IDF in Gaza. The purpose, here, will be to assess whether the mission's determina- 
tions — and concomitant allegations of LOAC violations — do, in fact, evidence 
both a departure from the way in which the most basic principles of this law have 
historically been interpreted and a fundamental shift in the manner in which such 
principles will be applied in the future, particularly in the context of asymmetric 
State/non- State urban conflict. Also of importance is the consideration of whether 
these allegations represent, either implicitly or explicitly, a move toward poten- 
tially enhanced criminal liability for State participants in such conflicts and 
whether in turn this has effected — or is effecting — a change in the tactics used to 
wage these types of conflicts. 



305 



The Law of Armed Conflict in Asymmetric Urban Armed Conflict 

IDF Attacks against Hamas "Government" Buildings and Gazan Authorities, 
Specifically the Gazan Police 

The government of Israel (GOI) has contended that the buildings targeted were an 
integral part of the Hamas "terrorist infrastructure" in that they housed those ele- 
ments of Hamas engaged in directing the ongoing armed attacks against Israel and 
that the Gazan police were merely an arm of the Hamas military forces. 10 In con- 
trast, the Goldstone mission determined that the buildings in issue were not used 
in a manner that made an "effective" contribution to military action and that, 
accordingly, IDF attacks on these buildings constituted a deliberate attack on 
civilian objects in violation of the customary rule of the LOAC that requires 
that attacks be limited strictly to military objectives. It further concluded that 
such attacks had resulted in a "grave breach" — the extensive destruction of civil- 
ian property not justified by military necessity carried out both unlawfully and 
wantonly — of the LOAC. 11 

With respect to the IDF attacks on Gazan police personnel, the Goldstone 
mission determined that, while there may have been certain elements of the 
Gazan police who were also members of Hamas armed groups and accordingly po- 
tential combatants, when attacked these police personnel were not taking a "direct 
part in hostilities" and thus had not lost their civilian immunity from direct attack. 
The mission further concluded that the IDF attacks on the police facilities failed to 
strike an acceptable balance between the direct military advantage expected to be 
gained, that is, the killing of those policemen who may, in fact, have been members 
of Hamas military groups; and the loss of civilian life, that is, those other policemen 
who may not have been members of such military groups, as well as members of 
the public who may simply have been in the vicinity of such attacks. 12 

Even a cursory assessment of the Goldstone mission's stated reasoning regard- 
ing this matter reveals what appears to be both a misinterpretation and misapplica- 
tion of the LOAC principles of military necessity, distinction and proportionality. 
The same can also be said of the manner in which the mission chose to apply the 
concept of "direct participation in hostilities" to Hamas police personnel who, by 
their status alone, could arguably have been targeted as combatants. Thus, to deem 
the IDF operational decisions in question as a "deliberate attack on civilian ob- 
jects" and a "grave breach" of the LOAC reflects a deliberate intent on the part of 
the mission to proffer an interpretation of these LOAC concepts that departs sig- 
nificantly from their historical application. Left unchallenged, the mission's find- 
ings would potentially constitute a fundamental shift in the way in which these 
most basic of LOAC principles will be applied in the future to all forms of conflict. 



306 



David E. Graham 



The Obligation of the IDF to Take Feasible Precautions to Protect Both the 
Civilian Population and Civilian Objects in Gaza 

In the context of this issue, the mission focused specifically on the obligation of 
the IDF to provide "effective" prior warnings of its attacks undertaken in Gaza. 
While the mission acknowledged that significant efforts had been made by the IDF 
to issue such warnings — radio broadcasts, the dropping of over 2,500,000 leaflets 
and the making of over 165,000 phone calls to specific buildings that were to be 
targeted 13 — it concluded that this was not enough. In the view of the mission, such 
warnings were simply not effective because some of both the prerecorded phone 
messages and leaflets lacked the required specificity 14 (absent a discussion of what 
such specificity might entail). And, in examining the IDF practice of firing 
warning shots from light weapons that hit the rooftops of designated targets in 
which civilians previously had been warned of an impending attack — as a final 
warning — it concluded that this, too, not only did not serve as an "effective" 
warning, but, instead, constituted an attack against civilians who chose to remain 
in the targeted buildings. 15 

Once again, the mission's interpretation of the actions that must be taken to 
provide an "effective" warning to civilians of an impending attack flies in the face 
of the codified LOAC. Such warnings can be only general in nature. There is no re- 
quirement that they be specific as to the time and location of an attack. 16 The mea- 
sures taken by the IDF in issuing warnings to the civilian population within Gaza 
went far beyond anything legally required. The mission's reasoning on this matter 
reflects an ignorance — or intentional misstatement — of the applicable law. 

Attacks by the IDF Resulting in Loss of Life and Injury to Civilians 

The mission examined multiple incidents involving IDF actions that resulted in 
civilian casualties and civilian property loss. It prefaced its legal conclusions with 
the recognition that, for all armies, decisions involving the concept of "propor- 
tionality" — weighing the military advantage to be gained against the risk of civil- 
ian casualties — would present genuine dilemmas. Having noted this, however, it 
concluded that, in applying these customary LOAC principles to every IDF action 
assessed, each IDF use offeree, regardless of any mitigating circumstances or oper- 
ational considerations that may have been involved, had been indiscriminate in 
nature and, in multiple cases, a deliberate, intentional attack on the civilian popu- 
lation and civilian infrastructure. As such, the mission contended, these attacks vi- 
olated the LOAC; some were grave breaches of the Fourth Geneva Convention (the 
1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of 
War); and, in certain cases, they also constituted a violation of the right to life of the 
Palestinian civilians killed — that is, they were a violation of human rights law. 17 

307 



The Law of Armed Conflict in Asymmetric Urban Armed Conflict 

The GOI has challenged these mission findings, setting forth, in detail, the opera- 
tional considerations that were at play at the time of the incidents in issue, and as- 
sessing the actions of the IDF, in each instance, in the context of both codified and 
customary LOAC principles. 18 

A review of the information provided by the GOI would lead to the conclusion 
that, while individual IDF commanders might be second-guessed regarding certain 
targeting and weapon decisions made during the course of an ongoing operation — 
and some IDF mistakes were made, and acknowledged — an objective LOAC 
analysis of the events in issue would not result in a finding that the IDF engaged in 
deliberate and indiscriminate attacks against the civilian population of Gaza. In 
view of the information available to the Goldstone mission, its allegations of willful 
killings of protected persons by IDF personnel, giving rise to individual criminal 
responsibility, reflect a complete misinterpretation or intentional distortion of the 
applicable LOAC norms. 

The IDF's Use of Certain Weapons 

The Goldstone mission, while noting that white phosphorus 19 is not proscribed 
under the LOAC, made the determination that the IDF was "systematically reck- 
less" in using this substance in densely populated, built-up areas. Accordingly, it 
concluded that serious consideration should be given by the international commu- 
nity to banning its use in such settings. 

The mission also focused on the IDF's use of flechettes: thousands of very deadly 
darts generally contained in tank shells. When a shell is fired, and detonates, these 
darts are sprayed over a three-hundred-by-one-hundred-meter area. Given the 
nomenclature of this munition, the mission opined that flechettes are an area 
weapon of an indiscriminate nature, and were, therefore, particularly unsuitable 
for use in urban locations where civilians are present. 20 

These mission statements are noted in order to alert those government repre- 
sentatives who deal with such matters of the fact that the mission has essentially de- 
clared the use of flechettes in certain operational settings as illegal per se. The 
"appropriate" use of such munitions may thus well appear on a forthcoming 
agenda of the International Committee of the Red Cross. 

In choosing to apply the LOAC, as well as human rights law, in the manner 
noted above, to IDF actions taken in Operation Cast Lead, the mission concluded 
that the IDF had committed over thirty violations of these legal regimes, to include 
grave breaches of the Geneva Conventions, and that, most significantly, in doing 
so, the IDF had intentionally targeted both the Gazan civilian population and in- 
frastructure. Given its findings, the mission demanded that the GOI investigate, try 
and punish those individuals found to be responsible for the commission of the 

308 



David E. Graham 



offenses that it had documented. This is in keeping with the concept of 
"complementarity," the right of a State to investigate and, if necessary, punish 
members of its armed forces who have engaged in violations of the LOAC. How- 
ever, of particular importance, the mission further recommended that, should the 
GOI be unable or unwilling to take these actions, these offenses should then be re- 
ferred to the International Criminal Court (ICC) and/or made subject to the exer- 
cise of universal jurisdiction. 21 

The mission then immediately proceeded to provide its own answer to the mat- 
ter of whether the GOI was, in fact, willing or able to undertake the investigatory 
and potential prosecutorial actions the commission deemed necessary. It made the 
following determination: 

International human rights law and humanitarian law require states to investigate and, 
if appropriate, prosecute allegations of serious violations by military personnel. Inter- 
national law has also established that such investigations should comply with standards 
of impartiality, independence, promptness, and effectiveness. The mission holds that 
the Israeli system of investigation does not comply with all of these principles. 22 

The mission also concluded that 

there are serious doubts about the willingness of Israel to carry out a genuine investiga- 
tion in an impartial, independent, prompt, and effective way. The mission is also of the 
view that the Israeli system overall presents inherently discriminatory features that 
make the pursuit of justice for Palestinian victims very difficult. 23 

In essence, then, the mission adjudged the GOI's application of the concept of 
complementarity in this particular situation and found it lacking. Such a conclu- 
sion would appear to serve as a unilateral mission determination that it was a fore- 
gone conclusion that its allegations of GOI violations of both the LOAC and 
human rights law would be submitted to the ICC and the exercise of universal 
jurisdiction. 

In making such a determination, the mission evidences either an apparent fail- 
ure to understand fully the requirements of complementarity or a decision to apply 
these requirements in such a way that even the world's most developed military in- 
vestigatory and prosecutorial systems could not meet the standards imposed. 24 Re- 
gardless of its motives, the mission's cursory dismissal of GOI efforts to investigate 
and prosecute alleged LOAC violations occurring in the context of Operation Cast 
Lead as inadequate does not serve as an authoritative interpretation of the 
complementarity concept. 



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The Law of Armed Conflict in Asymmetric Urban Armed Conflict 

Largely unnoticed, but of substantive importance to those States which consis- 
tently engage in the types of conflicts in issue, is the fact that, since the issuance of 
the Goldstone Report, its contents have been endorsed in both a February 2010 UN 
Human Rights Council report of a special rapporteur on the "human rights situa- 
tion in Palestine and other occupied Arab territories" 25 and most recently on 
April 14 in a UN Human Rights Council resolution dealing specifically with the 
report. Very significantly, the resolution called upon the General Assembly "to 
promote an urgent discussion on the future legality of the uses of certain muni- 
tions as referred to in the report of the United Nations Independent International 
Fact-Finding Mission on the Gaza Conflict, drawing, inter alia, upon the expertise 
of the International Committee of the Red Cross." 26 These UN endorsements of 
such flawed legal analysis are indeed daunting. 

Conclusion 

In closing, and in an attempt to formulate a basis for what I believe to be a necessary 
discussion concerning whether the Goldstone Report reflects a fundamental shift 
in the manner in which some of the most basic principles of the LOAC will be ap- 
plied to future asymmetric State/non-State urban armed conflict, I pose the follow- 
ing questions: 

1. Does the manner in which these types of conflicts are characterized dic- 
tate the extent to which the LOAC applies to such military operations? In 
the case of Operation Cast Lead, the conflict was unique in nature. It can 
be argued that it was neither a Common Article 2 nor a Common Arti- 
cle 3 conflict; that is, it was neither international nor internal in nature. 
Yet, clearly, it was the view of the Goldstone mission — as well as the in- 
ternational community as a whole — that certain aspects of the LOAC 
dictated the conduct of the parties involved. Are the findings of the mis- 
sion, then, to be applied in the future to all forms of conflict in which op- 
erations are conducted in an urban environment, e.g., US assaults on 
Taliban urban strongholds in Afghanistan? If not, in what manner are 
the specific aspects of the LOAC — both codified and customary — to be 
applied to asymmetric State/non-State urban conflict? 

2. Does the Goldstone Report reflect a consensus within the international 
community that the LOAC is no longer the exclusive legal regime that 
controls the means and methods of waging conflict — that is, that certain 
aspects of human rights law now play a coequal role? 



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David E. Graham 



3. In view of the Goldstone Report, has an identifiable shift occurred in the 
manner in which basic LOAC principles are now to be applied to target- 
ing decisions made in the context of urban conflict? That is, when bal- 
anced on the fulcrum of "proportionality," does the principle of 
"discrimination/ distinction" — the protection of the civilian population 
and civilian property — now disproportionately outweigh the principle 
of "military advantage/necessity"? 

4. Are there lawful weapon systems (white phosphorus, flechettes and clus- 
ter bomb units) that are, nevertheless, so indiscriminate in nature that, 
for the protection of the civilian population and civilian property, they 
should be barred from use in urban conflict? 

5. And, as an associated question: in view of a perhaps evolving perceived 
need to give added weight to the protection of the civilian populace and 
civilian property in urban conflict, should a State that possesses precision 
weapons and munitions be required to use such? 

6. The issue of "dual targeting"; that is, to what extent might a State target 
non- State entity personnel and facilities used by such personnel when 
they may serve both civilian and military purposes? In Gaza, for example, 
this would include the Gazan police, their facilities and the facilities of 
the Hamas leadership. 

7. This issue, in turn, raises the exceptionally controversial matter of the 
criteria to be used in determining whether an individual associated with 
a non-State entity is "directly" participating in hostilities — and thus sub- 
ject to being targeted. 

8. The extent to, and the manner in, which a State must issue a warning to 
an urban civilian population at large, or to individual civilians, of a pend- 
ing attack on a general area or a specific facility? 

9. What are the LOAC obligations of a non-State actor, if any? How might 
the international community hold a non- State actor responsible for both 
compliance with, and violations of, these obligations? 

1 0. How does a State cope with the intentional use of the civilian population, 
civilian property and protected places by a non-State entity for the pur- 
pose of gaining a military advantage? 



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The Law of Armed Conflict in Asymmetric Urban Armed Conflict 

1 1 . What is the status to be accorded non-State combatants seized in the 
course of a State/non-State conflict? For what offenses might they be tried 
and in what type of judicial forum? All of these issues are, of course, related 
to any form of conflict in which "unlawful combatants" might participate. 

1 2. And, finally, the Goldstone mission concluded that the GOI had failed to 
meet the international law standards required for a lawful exercise of the 
principle of complementarity, that right of a State to try members of its 
military forces for alleged violations of the LOAC. How is an assessment 
as to whether a State has met the requirements of complementarity to be 
made? And what body — or bodies — are empowered to make such a judg- 
ment, and a concomitant decision/recommendation that the alleged 
LOAC violations in issue be referred to the ICC or subjected to the exer- 
cise of universal jurisdiction? 

As noted, these questions go to the central issue of whether the Goldstone Report 
evidences a growing consensus within the international community that there has 
occurred a fundamental shift in the manner in which some of the most basic princi- 
ples of the LOAC — and, the mission would contend, human rights law as well — 
should be applied to asymmetric State/non-State urban conflict. And, if applicable to 
this form of conflict, why not to every form of conflict waged in an urban environ- 
ment? Moreover, if this is, in fact, the case, does this change portend an enhanced 
risk of potential criminal liability for the members of a State's armed forces who are 
called upon to make critical decisions in the midst of battle? 

Commentators may soon begin to contend that the Goldstone Report currently 
"occupies the field" with regard to these issues. For those who would differ with 
this assessment, I would submit that the time has come for an informed discussion 
and a clear statement of disagreement with the Goldstone mission's interpretation 
of the LOAC principles applicable to State/non-State urban asymmetric conflict. 

Notes 

1 . U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Terri- 
tories, Report of the United Nations Fact Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/ 
12/48 (Sept. 29, 2009) (Richard Goldstone), available at http://www2.ohchr.org/english/bodies/ 
hrcouncil/docs/12session/A-HRC- 12-48.pdf [hereinafter Goldstone Report]. 

2. Mat 13. 

3. Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects 5 (July 
29, 2009), available at http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Terrorism 
+and+Islamic+Fundamentalism-/Operation_in_Gaza-Factual_and_Legal_Aspects.htm [here- 
inafter GOI White Paper]. 

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David E. Graham 



4. See Goldstone Report, supra note 1, at 13. The other three appointed members were Pro- 
fessor Christine Chinkin, Professor of International Law, London School of Economics and Politi- 
cal Science; Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan; and Colonel Desmond 
Travers, a former officer in the Irish Defence Forces. 

5. Id. 

6. See id. at 14. 

7. Department of the Army, FM 27-10, The Law of Land Warfare para. 41, change l 
(1956). 

8. See International and Operational Law Department, Judge Advocate General's 
Legal Center and School, Operational Law Handbook 10-13 (2010). 

9. See, e.g., Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 
U.S.T. 3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR 244 (Adam Rob- 
erts & Richard Guelff eds., 3d ed. 2000). 

10. See GOI White Paper, supra note 3, at 86-90. 

11. See Goldstone Report, supra note 1, at 17. 

12. Mat 18. 

13. See GOI White Paper, supra note 3, at 99-100. 

14. See Goldstone Report, supra note 1, at 18. 

15. Id. at 19. 

16. Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Con- 
vention No. IV Respecting the Laws and Customs of War on Land art. 26, Oct. 18, 1907, 36 Stat. 
2227, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 9, at 69. 

17. See Goldstone Report, supra note 1, at 20. 

18. See GOI White Paper, supra note 3, at 1 17-50. 

19. White phosphorus is a toxic chemical agent that burns violently when exposed to air. In- 
cendiary munitions containing white phosphorus can be used for marking and range finding. Its 
use in non-incendiary munitions, however, is generally for the purpose of illuminating an area 
or producing a thick white smoke that can mask troop movements. The phosphorus powder 
continues to burn long after exposed to air and can ignite structures and cause serious chemical 
burns resulting in significant tissue damage when it comes into contact with human flesh. 

20. See Goldstone Report, supra note 1, at 21. 

21. Id. at 399, 422-24. 

22. Id. at 34. 

23. Id. at 35. 

24. For a comparative discussion of the investigatory and prosecutorial systems of the mil- 
itaries of the United Kingdom and the United States, see GOI White Paper, supra note 3, at 
114-17. 

25. U.N. Human Rights Council, Report of the Special Rapporteur on the situation of human 
rights in the Palestinian territories occupied since 1967, U.N. Doc. A/HRC/13/53/Rev.l (June 7, 
2010) (Richard Falk), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/ 
A.HRC.13.53.Rev.l_en.pdf. 

26. H.R.C. Res. 13/9, U 13, U.N. Doc. A/HRC/RES/13/9 (Apr. 14, 2010), available athtop:// 
daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/128/38/PDF/G1012838.pdf?OpenElement. 



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Lawfare Today . . . and Tomorrow 



Charles J. Dunlap, Jr.* 

A principal strategic tactic of the Taliban . . . is either provoking or exploiting 
civilian casualties. 

Secretary of Defense Robert Gates 1 

I. Introduction 

Although he does not use the term "lawfare," Secretary Gates' observation 
reflects what is in reality one of the most common iterations of lawfare in 
today's conflicts. Specifically, the Taliban are aiming to achieve a particular military 
effect, that is, the neutralization of US and allied technical superiority, especially 
with respect to airpower. To do so they are, as Secretary Gates indicates, creating 
the perception of violations of one of the fundamental norms of the law of armed 
conflict (LOAC), that is, the distinction between combatants and civilians. 

While "provoking or exploiting civilian casualties" is clearly a type of lawfare, it 
is by no means its only form. Although the definition has evolved somewhat since 
its modern interpretation was introduced in 200 1, 2 today I define it as "the strategy 
of using — or misusing — law as a substitute for traditional military means to 
achieve a warfighting objective." 3 

As such, it is ideologically neutral, that is, it is best conceptualized much as a 
weapon that can be wielded by either side in a belligerency. In fact, many uses of 
legal "weapons" and methodologies avoid the need to resort to physical violence 



* Major General, US Air Force (Ret.); Visiting Professor of the Practice of Law and Associate Di- 
rector, Center on Law, Ethics, and National Security, Duke University School of Law. 



Lawfare Today . . . and Tomorrow 



and other more deadly means. This is one reason, for example, that the United 
States and other nations seek to use sanctions before resorting to the use of force 
whenever possible. 

Another illustration would be the use of a contract "weapon" during the early 
part of Operation Enduring Freedom to purchase commercially available satellite 
imagery of Afghanistan. 4 This approach was equally or, perhaps, more effective than 
other more traditional military means might have been in ensuring the imagery did 
not fall into hostile hands. Additionally, most experts consider the re-establishment 
of the rule of law as an indispensable element of counterinsurgency (COIN) strategy. 
Finally, few debate that the use of legal processes to deconstruct terrorist financing 
is an extraordinarily important part of countering violent extremists. 

In short, there are many uses of what might be called "lawfare" that serve to re- 
duce the destructiveness of conflicts, and therefore further one of the fundamental 
purposes of the law of war. All of that said, others have given the concept a rather 
different meaning. Some couch it in terms of what is alleged to be the "growing use 
of international law claims, usually factually or legally meritless, as a tool of war." 5 
Similarly, the privately run Lawfare Project openly acknowledges it concentrates 
"on the negative manipulation of international and national human rights laws" 
for purposes, it asserts, that are "other than, or contrary to, that for which those 
laws were originally enacted." 6 

Some go even further. In 2007 respected lawyer-writer Scott Horton expressed 
concern that unnamed "lawfare theorists" purportedly consider that attorneys 
who aggressively use the courts in the representation of Guantanamo detainees 
and other terrorism-related matters "might as well be terrorists themselves." 7 
More recently, much discussion of lawfare has centered on legal maneuvering as- 
sociated with the Israeli-Palestinian confrontation. For example, some individuals 
and organizations see lawfare as "the latest manifestation in the sixty-year cam- 
paign to isolate the State of Israel." 8 

In any event, these sometimes hyperbolic permutations on lawfare theories are 
not that espoused by this article. Among other things, it is certainly not the view of 
this writer that any party legitimately using the courts is doing anything improper. 
Instead, this brief article will focus more narrowly on the role of law in contempo- 
rary conflicts, principally that in Afghanistan. 

It is true, as Secretary Gates' comment suggests, that lawfare in the Afghan 
context has typically taken the form of the manipulation of civilian casualties to 
make it appear that US and allied forces have somehow violated legal or ethical 
norms. Thus, it could be said that lawfare itself is an asymmetrical form of war- 
fare, one that is value-based and that seeks to outflank, so to speak, conventional 
military means. 

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Charles J. Dunlap, Jr. 



Regardless, from this writer's perspective, the use of the term "lawfare" was al- 
ways intended as a means of encapsulating for non-lawyer, military audiences the 
meaning of law in today's war. It was not intended to fit neatly into some political 
science construct. Rather, the sobriquet of "lawfare" was meant to impress upon 
military audiences and other non-lawyers that law is more than just a legal and 
moral imperative; it is a practical and pragmatic imperative intimately associated 
with mission success. In that respect, the growth of the term seems to have had 
some positive results. 

II. Lawfare Today: Airpower and Civilian Casualties 

Perhaps no aspect of what this writer would characterize as lawfare is more promi- 
nent than the restrictive rules of engagement imposed upon allied forces in Af- 
ghanistan in an effort to win "hearts and minds" by limiting civilian casualties. 
These restrictions go far beyond what LOAC requires, and are a classic example of 
efforts to "improve upon" LOAC via policymaking that insufficiently appreciates 
unintended consequences that can have, at the end of the day, decidedly counter- 
productive results. As a noncommissioned officer explained to columnist George 
Will in June of 2010, the rules of engagement in Afghanistan are "too prohibitive 
for coalition forces to achieve sustained tactical success." 9 And other troops fight- 
ing there have raised similar concerns. 

Airpower in particular has been cast — wrongly in my view — as a villain with re- 
spect to the civilian casualty issue. The Army and Marine Corps' COIN Field Man- 
ual (FM) 3-24, 10 for example, discourages the use of the air weapon by claiming 
that "[b]ombing, even with the most precise weapons, can cause unintended civil- 
ian casualties." 11 Of course, any weapon "can" cause civilian casualties, 12 so it is not 
clear why air-delivered munitions should be singled out for "exceptional care," as 
FM 3-24 demands. 

More important, the data show that ground operations can be vastly more dan- 
gerous to civilians than airstrikes. A study by the New England Journal of Medicine 
found that fewer than 5 percent of civilian casualties in Iraq during the 2003-8 time 
frame were the result of airstrikes. 13 Regarding Afghanistan, a 2008 Human Rights 
Watch study of airstrikes found that it was the presence of troops on the ground 
that created the most risk to civilians, as the "vast majority of known civilian 
deaths" came from airstrikes called in by ground forces under insurgent attack. 14 

Even more recently, a National Bureau of Economic Research study found that 
only 6 percent of the civilian deaths attributed to International Security Assistance 
Force (ISAF) were the result of airstrikes. In fact, traffic accidents with ISAF vehicles 



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Lawfare Today . . . and Tomorrow 



were two and a half times more likely to be the cause of the deaths of Afghan 
women and children than were airstrikes. 

Nevertheless, ground commanders have insisted that civilian deaths could be 
curtailed with more troops. Army Brigadier General Michael Tucker suggested as 
much when he told USA Today in late 2008 that "[i]f we got more boots on the 
ground, we would not have to rely as much on [airstrikes]." 15 Unsurprisingly, 
therefore, when General Stanley McChrystal assumed command in Afghanistan in 
June of 2009, he immediately issued orders that significantly restricted the use of the 
air weapon, 16 and shortly thereafter called for a "surge" of mainly ground forces. 17 

It should be said that even before General McChrystaPs orders the coalition's 
ability to use the air weapon was complicated by NATO's own public pro- 
nouncements that distorted the understanding of the law of war, with tragic con- 
sequences. 18 Specifically, in June of 2007 NATO declared that its forces "would not 
fire on positions if it knew there were civilians nearby." 19 A year later its statement 
was even more egregious, when a NATO spokesman preened that "[i]f there is the 
likelihood of even one civilian casualty, we will not strike, not even if we think 
Osama bin Laden is down there." 20 

This statement was not only insensitive to Americans cognizant of the horror of 
the bin Laden-inspired 9/11 attacks; it also works counter to the basic purposes of 
LOAC. Of course, zero casualties are not what LOAC requires; rather, it only de- 
mands that they not be excessive in relation to the military advantage anticipated. 
The law is this way for good reason: if "zero casualties" were the standard, it would 
invite adversaries to keep themselves in the company of civilians to create a sanctu- 
ary from attack. The Taliban heard NATO's invitation and did exactly that. 21 

In any event, if the intent of the June 2009 airpower restrictions was to save civil- 
ian lives, it did not succeed. Although civilian deaths from the actions of NATO 
forces did decline, 22 overall civilian deaths in Afghanistan nevertheless reached an 
all-time high in 2009. 23 And civilian deaths soared 31 percent in 2010 over 2009's 
record-breaking figures. I would suggest that an obvious (albeit unintended) result 
of forgoing opportunities to kill extremists via airstrikes is that they live another 
day to kill more innocents. 24 

This may be why the UN reported on June 19, 2010 — about a year after General 
McChrystal's order — that security in Afghanistan has "deteriorated markedly" in 
recent months. 25 Moreover, in terms of "winning hearts and minds," analyst Lara M. 
Dadkhah raises the interesting point worth pondering in a February 2010 New 
York Times op-ed that the "premise that dead civilians are harmful to the conduct 
of the war [is mistaken, as] no past war has ever supplied compelling proof of that 
claim." 26 That is proving to be the case in Afghanistan. 



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Charles J. Dunlap, Jr. 



To his credit, General McChrystal did admit in December 2009 that there was 
"much about Afghanistan that [he] did not fully understand." 27 In that respect, his 
assumption that seems to underlie his order — that civilian deaths inevitably work 
against the perpetrators' cause — may be one of the things he did not correctly un- 
derstand. For example, Ben Arnoldy of the Christian Science Monitor reports that 
the Taliban — not NATO forces — were responsible for the majority of civilian 
deaths in 2009. 28 Even though those deaths reflect a 41 percent increase over 2008, 
Arnoldy says that "there is little indication these Taliban indiscretions have back- 
fired on the movement so far." 29 

Consider as well the Afghan reaction in September of 2009 when General 
McChrystal sought to apologize for the bombing of a hijacked oil tanker near 
Kunduz that allegedly killed seventy-two Afghans. The Washington Post reports 
that when General McChrystal began to apologize, a local "council chairman, 
Ahmadullah Wardak, cut him off' with demands for a tougher approach. 30 
"McChrystal," the Post recounts, "seemed to be caught off guard [by Wardak' s re- 
proof]" as Wardak asserted that the allies have been "too nice to the thugs." 31 

Jeremy Shapiro, a Brookings Institution scholar who served on a civilian assess- 
ment team for General McChrystal, analyzes Wardak's remarks as saying that if the 
coalition is going to be a genuine provider of security for the people, that means: 
" [ Y] ou'll do what is necessary to establish control, and the very attention that the 
coalition pays to civilian casualties actually creates the impression among many Af- 
ghans that [coalition forces] in fact are not interested in establishing control and 
not interested in being the provider of security." 32 Shapiro concedes that the 
Afghan government has "highlighted" the civilian casualty issue but argues that it 
is doing so "because it serves to demonstrate [its] independence from the coalition 
and gives [it] leverage with the coalition." 33 To his surprise, Shapiro says, local of- 
ficials in his experience "tend actually not to be too concerned" with the civilian 
casualties. 34 In short, he concludes that while the civilian casualty issue "clearly 
resonates very strongly [in the United States] and in Europe ... [it is] not clear 
that Afghans actually see this as a key issue." 35 

A Gallup poll released in February 2010 provides further data as to Afghan per- 
ceptions. Although the question of airstrikes was not directly addressed, it did 
show that beginning in June of 2009 (coinciding with the new restrictions on 
airpower) through the end of the survey period in late 2009, Afghans' approval of 
US leadership in Afghanistan declined, as did their support for additional troops. 36 

Obviously, the restrictions on airpower did not have the hoped-for "hearts and 
minds" effect. Further complicating the issue is the fact that, like those of Afghan 
civilians, coalition casualties also reached an all-time high in 2009. 37 And these dis- 
turbing casualty trends are continuing into 2010; by the end of September the 

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Lawfare Today . . . and Tomorrow 



number of coalition casualties exceeded the record-breaking high of 2009. 38 Thus, 
however well-intentioned the airpower restrictions may have been, evidence of 
their efficacy is not apparent. 

The deleterious effect on operations is unmistakable, as the deteriorating secu- 
rity situation noted in the UN report above attests. 39 At one time Taliban fighters 
cowered at American airpower. 40 Today, however, the Air Force Times reports that 
because of the new directive, the Taliban "no longer run and hide when they see a 
fighter jet overhead." 41 The Times quotes an Air Force pilot as expressing frustra- 
tion "when you can see them shooting at our guys" and are obliged not to attack. 42 
The pilot laments that the enemy knows that "we are not allowed to engage in cer- 
tain situations." 43 

At the same time airpower technology continues to develop even more discrete 
and effective ways to hunt the terrorists without the need to put thousands of 
young Americans in harm's way. According to the Washington Post, "a new genera- 
tion of small but highly accurate missiles" designed to limit collateral damage is be- 
ing fielded for employment on remotely manned vehicles. 44 Such technology, the 
Post reports, along with better intelligence, has caused the "clamor over [drone] 
strikes [to have] died down considerably over the last year." 45 

While airpower alone is not — and can never be — the whole solution to today's 
wars, rethinking it in the context of what today's technology can provide might 
produce opportunities to fulfill the President's intent of protecting Americans 
against terrorist attack in a less resource-demanding way, 46 and at the same time 
serve the interests of international humanitarian law's effort to ameliorate the hor- 
ror of war, and especially its impact on innocent civilians. 

III. Lawfare Tomorrow: The Emerging Issues 

The increasing controversy concerning "drones," or, more accurately, remotely pi- 
loted vehicles (RPVs), is raising some interesting legal and policy issues with 
lawfare implications. By all reports, these weapon systems are extremely effective, 
particularly in eroding enemy leadership cadres. Yet a variety of objections have 
been offered as to their use. 

Some of the attacks border on the absurd, and are reminiscent of medieval legal 
debates. For example, in A.D. 1139 Pope Innocent II and the Second Lateran 
Council condemned the missile warfare that was devastating Europe's knighted ar- 
istocracy by calling slingers and archers "dastards" that are practicing a "deadly 
and God-detested art" with their stones and arrows. 47 Fast-forward to 2009, and 
we find former Australian Army officer David Kilcullen condemning the missile 
warfare that is devastating the terrorist aristocracy of the Taliban and Al Qaeda by 



320 



Charles /. Dunlap, Jr. 



telling Congress to "call off the drones" in part because the militants view aerial at- 
tacks as "cowardly and weak." 48 

It is not clear why anyone should be concerned about the sensibilities of Taliban 
and Al Qaeda militants. Although Kilcullen and others seem to view the militants 
as courageous fighters seeking man-to-man fights, their use of indiscriminate im- 
provised explosive devices — which grew 94 percent over the past year 49 — plainly 
shows that they embrace remotely operated systems (albeit on the ground and not 
in the air). In addition, reports indicate that the Taliban are not only intermingling 
with civilians in the hopes of being shielded; media reports also say they are engag- 
ing in the vile practice of buying children to use as suicide bombers. 50 

Almost as problematic as the "cowardly" objections to advanced warfighting 
systems is the emergence of the "targeted killings" debate. This has become some- 
thing of a cottage industry within the human rights establishment. Many commen- 
tators seem to be frantically searching for ways to find the use of the highly effective 
RPVs somehow improper. A good example is the recent report of the UN's Special 
Rapporteur on Extrajudicial, Summary or Arbitrary Executions. 51 

One of the most disappointing aspects of the report was the allegation that RPV 
operators might adopt a "Playstation mentality." This wholly speculative and un- 
proven allegation questioning the professionalism of RPV operators is but one il- 
lustration of the report's deficiencies. Moreover, the illogical suggestion that 
military or intelligence professionals would prefer to kill a terrorist as opposed to 
capturing and interrogating him is yet another indication of the report's flaws. 

Yet there are issues associated with RPVs. For example, in a recent issue of 
Armed Forces Journal, Peter Singer of the Brookings Institution raises issues about 
the status of RPV operators by questioning the propriety of the operation of the 
aircraft by other than military personnel. 52 Perhaps as interesting — or more so — is 
the question of fully autonomous RPVs or other weapon systems. 

As a practical matter, the current generation of RPVs generally requires a very 
permissive air environment to survive. To use the systems in contested airspace 
presents a variety of daunting technical challenges that must be overcome, not the 
least of which is the maintenance of continuous contact between the vehicle and its 
distant operator. Many experts believe that in the future the vehicle would have to 
operate autonomously, at least part of the time. 

The world has not, however, been receptive to autonomous weapons systems. 
Exhibit "A" would be the near-universal ban on landmines we have today. When 
one examines the history of the ban, it becomes clear that emotional arguments 
predominated as opposed to tempered, rational discussions of how the weapons 
might be used in ways that actually reduce the destructiveness of war. Regardless, 
the experience of the landmine campaign may be something of a portent for 

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Lawfare Today . . . and Tomorrow 



policymakers to consider, as science will inevitably provide the opportunity for the 
development of a whole family of partly or even fully autonomous weapons sys- 
tems for use in air, land, sea and cyber domains. 

IV. Concluding Observations 

Any discussion of lawfare seems to invite conclusions that "the law" is somehow an 
impediment to successfully warfighting, especially in an era of irregular warfare 
waged by non-State actors. 53 It is true, as mentioned earlier in this article, that there 
certainly will always be those who will abuse the law for perverse purposes. That 
should not, however, suggest abandoning the law. Consider the thoughtful obser- 
vations of Lawrence Siskind in response to the "lawfare" strategies of Hamas lev- 
eled at Israel: 

When al-Qaeda terrorists used jet planes as weapons to crash into skyscrapers in 2001, 
the West did not abandon its airports and office buildings. Instead, it found ways to 
cope with danger without making fundamental changes to its business life. The fact 
that Hamas terrorists are cynically using another Western institution, the rule of law, as 
a weapon today does not mean that Western nations should abandon it. Instead, they 
must learn to adjust and cope. 54 

In the twenty-first century we should expect to see further developments of 
lawfare. We may not like all of its iterations, but we should never forget that legal 
battles are always preferable to real battles, and modern democracies are well- 
suited to wage — and win — legal "wars." 

Notes 

1. Press Conference, Secretary of Defense Robert Gates & Chairman, Joint Chiefs of Staff 
Michael Mullen, Leadership Changes in Afghanistan (transcript), DEFENSELINK (May 11, 
2009), http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=4424. 

2. Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 
21st Century Conflicts (Carr Center for Human Rights, John F. Kennedy School of Government, 
Harvard University, Working Paper, 2001), available at http://www.ksg.harvard.edu/cchrp/ 
Web%20Working%20Papers/Use%20of%20Force/Dunlap200 1 .pdf (last visited Jan. 2 1 , 20 1 1 ). 

3. The author originally cast the definition to say "achieve an operational objective" but 
changed the wording so as to preclude an interpretation that was linked to a particular level of 
war. Charles J. Dunlap, Jr., Lawfare Today, YALE JOURNAL OF INTERNATIONAL AFFAIRS, Winter 
2008, at 146, available at http://www.nimj.org/documents/Lawfare%20Today.pdf. 

4. See John J. Lumpkin, Military Buys Exclusive Rights to Space Imaging's Pictures of Afghanistan 
War Zone, ASSOCIATED PRESS, Oct. 15, 2001, available at http://www.fas.org/sgp/news/2001/10/ 
apl01501.html. 



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Charles /. Dunlap, Jr. 



5. David B. Rivkin, Jr. & Lee A. Casey, Lawfare, WALL STREET JOURNAL, Feb. 23, 2007, at 
Al 1, 0vaz/aWeathttp://online.wsj.com/article/SBl 17220137149816987.html (emphasis added). 

6. What is Lawfare?, THE LAWFARE PROJECT, available at http://www.thelawfareproject.org 
(last visited Jan. 21,2011). 

7. Scott Horton, State of exception: Bush's war on the rule of law, HARPER'S MAGAZINE, July 
2007, at 74, available at http://www.harpers.org/archive/2007/07/0081595. 

8. Lawrence J. Siskind, Lawfare, THE AMERICAN THINKER (Feb. 7, 2010), http:// 
www.americanthinker.com/2010/02/lawfare_l.html. 

9. George Will, Editorial, Futility in Afghanistan; An NCO fires off a round of illumination, 
WASHINGTON POST, June 20, 2010, at A 19. 

10. Headquarters, Department of the Army & Headquarters, Marine Corps Combat Devel- 
opment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency (2006), available at http:// 
www.scribd.com/doc/9137276/US-Army-Field-Manual-FM-324-Counterinsurgency. 

11. Id., app. E, para. E-5. 

12. See, e.g., Afghan Official: Troops Killed Civilians, CNN.COM (May 14, 2010), http:// 
afghanistan.blogs.cnn.com/2010/05/14/afghan-official-troops-killed-civilians/. 

13. Madelyn Hsiao-Rei Hicks et al., The Weapons That Kill Civilians - Deaths of Children and 
Noncombatants in Iraq, 2003-2008, NEW ENGLAND JOURNAL OF MEDICINE, Apr. 16, 2009, at 
1585, 1586, available at http://content.nejm.org/cgi/reprint/360/16/1585.pdf (emphasis added). 

14. HUMAN RIGHTS WATCH, "TROOPS IN CONTACT": AlRSTRIKES AND CIVILIAN DEATHS 
IN AFGHANISTAN 29 (2008), available at http://hrw.org/reports/2008/afghanistan0908/ 
afghanistan0908web.pdf. 

15. Jim Michaels, Airstrikes in Afghanistan increase 31%, USA TODAY, Nov. 5, 2008, at 1, 
available at http://www.usatoday.com/news/world/2008-l l-05-afghanstrikes_N.htm. 

16. Dexter Filkins, U.S. Toughens Airstrike Policy in Afghanistan, NEW YORK TIMES, June 22, 

2009, at Al. 

1 7. The author discussed this issue in Could Airstrikes Save Lives?, WASHINGTON POST, Oct. 
22,2010,atA25. 

18. The North Atlantic Treaty Organization nations are the principal but not exclusive con- 
tributors of foreign forces for the International Security Assistance Force in Afghanistan. 

19. Noor Khan, US Coalition Airstrikes Kill, Wound Civilians in Southern Afghanistan, Offi- 
cial Says, Associated Press, international herald Tribune, June 30, 2007 (quoting Major 
John Thomas, spokesman for NATO's International Security Assistance Force), available at 
http://www.iht.com/articles/ap/2007/06/30/asia/AS-GEN-Afghan-Violence.php. 

20. Pamela Constable, NATO Hopes to Undercut Taliban with Surge of Projects, 
WASHINGTON POST, Sept. 27, 2008, at A12 (quoting Brigadier General Richard Blanchette, chief 
spokesman for NATO forces), available at http://www.washingtonpost.com/wp-dyn/content/ 
article/2008/09/26/AR2008092603452_pf.html. 

21. See, e.g., Inside US Hub for Air Strikes, BBC AMERICA, Nov. 29, 2008 (quoting Colonel 
Eric Holdaway as saying, " [S]ome of our enemies have clearly located themselves amongst civil- 
ians"), available at http://news.bbc.co.Uk/2/hi/south_asia/7755969.stm. 

22. "Pro-government forces reduced civilian killings by 28 percent." See Ben Arnoldy, His- 
tory sides with Taliban, for now, CHRISTIAN SCIENCE MONITOR, May 10, 2010, at 9. 

23. See Dexter Filkins, '09 Deadliest Year for Afghans, UN. Says, NEW YORK TIMES, Jan. 14, 

2010, at A6, available at http://www.nytimes.com/2010/01/14/world/asia/ 14kabul.html. 

24. See supra note 17. 



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Lawfare Today . . . and Tomorrow 



25. Ernesto Londono, U.N. Report on Afghanistan Notes Surge in Attacks and Killings, 
WASHINGTON POST, June 20, 2010, at A9, available at http://www.washingtonpost.com/wp-dyn/ 
content/article/20 1 0/06/ 1 9/AR20 1 006 1 9027 1 5.html. 

26. See Lara M. Dadkhah, Op-Ed, Empty Skies Over Afghanistan, NEW YORK TIMES, Feb. 18, 
2010, at A27, available at http://www.nytimes.com/2010/02/18/opinion/18dadkhah.html. 

27. Afghanistan: The Results of the Strategic Review, Part II: Hearing Before the House Armed 
Services Committee, 1 1 1th Cong. 61 (2009) (statement of General Stanley R. McChrystal), avail- 
able at http://www.gpo.gov/fdsys/pkg/CHRG-l 1 lhhrg57832/pdf/CHRG-l 1 lhhrg57832.pdf. 

28. Arnoldy, supra note 22. 

29. Id. 

30. Rajiv Chandrasekaran, Sole Informant Guided Decision On Afghan Strike, WASHINGTON 
POST, Sept. 6, 2009, at A01, available at http://www.washingtonpost.com/wp-dyn/content/article/ 
2009/09/05/AR2009090502832.html. 

31. Id. 

32. Jeremy Shapiro, Remarks at the Proceedings of the Afghanistan and Pakistan Index 
and Assessments Project at the Brookings Institution 33 (Oct. 5, 2009) (transcript available at 
http://www.brookings.edU/~/media/Files/events/2009/1005_afghanistan_pakistan/20091005 
_afghanistan_pakistan.pdf) . 

33. Id. at 32. 

34. Id. 

35. Id. 

36. Julie Ray & Rajesh Srinivasan, Afghans More Skeptical of U.S. Leadership, Troops, GALLUP 
(Feb. 3, 2010), available at http://www.gallup.com/poll/125537/afghans-skeptical-leadership 
-troops-2009.aspx. 

37. See Operation Enduring Freedom: Coalition Military Casualties by Year and Month, 
lCASUALTIES.ORG, available at http://www.icasualties.org/OEF/ByMonth.aspx (last visited Dec. 
2,2010). 

38. Id. 

39. See Londono, supra note 25. 

40. See, e.g., Rowan Scarborough, Pentagon Notebook: McPeak calls McCain too fat, 
WASHINGTON TIMES, June 26, 2008, at B01 (quoting a Taliban commander as saying, "Tanks 
and armor are not a big deal — the planes are the killers. I can handle everything but the jet fight- 
ers."), available at http://www.washtimes.com/news/2008/jun/26/pentagon-notebook-mcpeak 
-calls-mccain-too-fat/?page=2. 

41. Michael Hoffman, Looking Down in Frustration: McChrystal Order Limiting Afghan 
Airstrikes Takes Punch Out of Pilots, AIR FORCE TIMES, May 3, 2010, at 16. 

42. Id. 

43. Id. 

44. Joby Warrick & Peter Finn, In Pakistan, CIA Refines Methods to Reduce Civilian Deaths, 
Washington Post, Apr. 26, 2010, at A8. 

45. Id. 

46. Even critics concede that attacks on high-value targets — mainly by remotely piloted ve- 
hicles but also by other means — can be extremely effective when properly calibrated and con- 
ducted. See Mathew Frankel, Remarks at the Defense Challenges and Future Opportunities 
Symposium, at the Brookings Institution 4-13 (Mar. 26, 2010) (transcript available at http:// 
www.brookings.edu/~/media/Files/events/20 1 0/0326_defense_challenges/20 1 00326_defense 
_challenges_panel 1 .pdf) . 



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Charles /. Dunlap, Jr. 



47. Jonah Goldberg, Crossbows & Suicide Bombers, NATIONAL REVIEW ONLINE (Aug. 10, 2001), 
http://www.nationakeview.com/articles/204995/crossbows-suicide-bombers/jonah-goldberg. 

48. Doyle McManus, U.S. Drone Attacks in Pakistan 'Backfiring/ Congress Told, 
LATlMES.COM (May 3, 2009), http://www.latimes.com/news/opinion/commentary/la-oe 
-mcmanus3-2009may03,0,7133284.column. 

49. See Londono, supra note 25 (citing UN report). 

50. Sara A. Carter, Taliban Buying Children to Serve as Suicide Bombers, WASHINGTON 
TIMES, July 2, 2009, at 1. 

5 1 . See U.N. Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary 
or arbitrary executions, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (Philip Alston), available at 
http://www2.ohchr.Org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf. 

52. P.W. Singer, Double-Hatting Around the Law, ARMED FORCES JOURNAL, June 2010, at 
44, available at http://www.armedforcesjournal.com/2010/06/4605658. See also Gary Solis, 
Americas unlawful combatants, WASHINGTON POST, March 12, 2010, at A17, available af http:// 
www.washingtonpost.com/wp-dyn/content/article/2010/03/ll/AR2010031103653.html. 

53. The Department of Defense defines "irregular warfare" as a "violent struggle among 
state and non-state actors for legitimacy and influence over the relevant population(s). Irregular 
warfare favors indirect and asymmetric approaches, though it may employ the full range of mili- 
tary and other capacities, in order to erode an adversary's power, influence, and will." See Chair- 
man of the Joint Chiefs of Staff, Joint Publication 1-02, Dictionary of Military and Associated 
Terms (Nov. 12, 2010, as amended through Dec. 31, 2010), available at http://www.dtic.mil/ 
doctrine/dod_dictionary/. 

54. Siskind, supra note 8. 



325 



XIII 



The Age of Lawfare 



Dale Stephens* 



We are currently living in the age of lawfare; perhaps we always have been. 
The term, in its relationship to armed conflict, was most recently popu- 
larized by Major General Charles Dunlap of the US Air Force in 2001 l and has gen- 
erated an exponential and diffuse trajectory of meaning and critique since that 
time. The term "lawfare" has no real fixed definition, but has come to be generally 
understood as the "use or misuse of law as a substitute for traditional military 
means to achieve military objectives." 2 It has been examined in the context of do- 
mestic US legal practices, 3 in transnational legal incidents 4 and, of course, within 
the realm of public international law, particularly in the context of the law of 
armed conflict (LOAC). 5 All accounts do share a conception that recognizes that 
lawfare is concerned with the instrumentalization or politicization of the law to 
achieve a tactical, operational or strategic effect. 

The reference to the "use or misuse" of law in the Dunlap definition reveals an 
essentially neutral perspective. The fact is that modern State military forces do le- 
gitimately use the law to achieve military outcomes. This is done as a substitute for 
the application of force and hence represents a form of lawfare so defined. This 
may be manifested with, for example, a UN Charter, Chapter VII, "all necessary 



* Captain, CSM, Royal Australian Navy. The views expressed in this paper are entirely those of 
the author in his personal capacity and do not necessarily reflect the views of the Australian 
government, the Australian Defence Force or any other body with whom the author is 
associated. 



The Age ofLawfare 



means" Security Council resolution that displaces the law of neutrality or other- 
wise shapes the tactical or strategic military environment. 6 Alternatively, it may 
also be manifested in a formal determination as to whether an armed conflict exists 
at all, whether it is international or non-international and/or whether an opposi- 
tion group is to obtain prisoner of war rights or not. In this sense, the law is 
"weaponized" to achieve a desired military outcome that negates the need to apply 
force to obtain the same result. Indeed, recent scholarship on this body of law has 
highlighted the notion that LOAC practice itself is a process of construction, 
contestation and strategic instrumentalization that usually advantages State mili- 
tary forces. 7 That the existing architecture of LOAC possesses this apparent bias 8 
for State military forces is not surprising. Under classical views States are the sub- 
jects, and not the objects, of international law. Moreover, from a policy perspec- 
tive, this preference is both appropriate and necessary under the existing 
international legal structure. This is to ensure the right balance between interna- 
tionally recognized military and humanitarian aims in warfare is maintained and 
that institutional accountability is effectively preserved. 

While States engage in a type of structural lawfare to achieve military aims, the 
primary focus of this article is to examine the converse situation, namely, the man- 
ner in which lawfare is exercised against States. The strategic use of the law by non- 
State groups engaged in asymmetric warfare has been recognized as a significant 
tool to obtain military and political advantage. In these contexts, such groups will, 
inter alia, invite the application of force against themselves or their proxies, inno- 
cent civilians (as incidental injury), or ostensibly civilian objects (that have lost 
their protection) that, while strictly lawful, nonetheless generate political costs 
and/or moral dilemmas for the attacking force. The goal is to undermine the resolve 
of State military forces by generating negative reaction by relevant constituencies 
with political power. 

Predictably, this type of lawfare prompts reactions concerning the "unfairness" 
of legal constraints applying to one side as compared to the wanton disregard of legal 
compliance by the other. 9 Such asymmetric disadvantage is usually framed in 
terms of a dilemma within the literature for Western "law-abiding" military forces 
in meeting the threats while retaining a fidelity to the law. Lawfare is thus charac- 
terized in the register of formal legality of being a refuge of the weak, 10 of being dis- 
ingenuous by unfairly manipulating the law to achieve a relevant extra-legal and 
asymmetric effect. 

It is the purpose of this article to review the phenomenon of lawfare to highlight 
how law is situated within the broader political, moral and social terrain of military 
decision making. The reactions against lawfare disclose a number of assumptions. 
Principally, the reactions against lawfare evidence a particular interpretive attitude 

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Dale Stephens 

to LOAC, specifically one based squarely within a positivist orientation. Positivism 
remains the dominant interpretive idiom of LOAC, but it contains a number of 
vulnerabilities in its theoretical structure. It is a goal of this article to identify such 
vulnerabilities and to propose remedies that might be used to prompt a more self- 
aware counter-lawfare response within positivism's interpretive enterprise. 

A broader goal is to tackle the issue of how the law is actually employed within 
military decision making. It will contend that while LOAC is often expressed in a 
key of validity, it should also be understood in a register of legitimacy. The factors 
that contribute to such an approach draw upon broader socio -legal and ethical 
considerations and these will be canvassed. 

To this end, it is submitted that military lawyers and operators alike regularly 
synthesize legal propositions with broader political, social and moral consider- 
ations when dispensing advice and embarking upon a course of action. In so doing, 
this permits a more nuanced and surgical application of force that meets broader 
military and political goals. In short, it allows for effective mission accomplish- 
ment. It also allows for a firmer foundation in confronting lawfare and its intended 
manipulation of moral and political reaction. This assimilation of factors that occurs 
when developing legal advice is not always admitted, but it occurs nonetheless, and 
should be acknowledged and discussed for what it can add to the military apprecia- 
tion process. 

This is not to say that the register of formal legal validity has been dispensed 
with. Quite the contrary, a formal assessment of law is always the starting point in 
any interpretive exercise. Rules are carefully parsed and their linguistic construc- 
tion assessed against standard canons of interpretation. However, the law is more 
indeterminate, language more malleable and open, than what we might imagine. 
In reality, the practice of LOAC takes place against a complex array of normative 
factors. Whether reconciled as acting within the "free space" of legal discretion 
permitted under positivism's structure or as a product of government-imposed 
policy overlay to ameliorate a rule's strictness, or indeed some other rationale, the 
result is the same. It remains true today that, at least since the Vietnam War, liberal 
democratic societies are compelled to wage war through a prism of self-perceived 
legitimacy. Modern military lawyers by necessity navigate this complex legal and 
political topography as a matter of course. It also means that confronting lawfare 
tactics head-on is not as daunting as it may at first seem. 

This article is comprised of three parts. Part I will briefly examine the tenor of 
claims regarding lawfare so as to situate the subsequent analysis. Part II will canvass 
the dominant interpretive idiom of LOAC — namely, positivism — and will dem- 
onstrate the blind spots and gaps that this methodology generates. It will outline 
the remedies that are available to deal with lawfare (i.e., counter-lawfare) either 

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The Age ofLawfare 



under positivism's method or more broadly under a complementary approach of 
LOAC practice within the register of legitimacy. Finally, Part III will conclude by 
examining the choices and orientation military lawyers might adopt in the context 
of counter-lawfare. To this end, assessment of means-ends rationality, con- 
structivism and virtue ethics will be separately undertaken. 

Part I. Lawfare and Its Taxonomy 

The term "lawfare" has established a distinctly pejorative connotation within the pre- 
vailing literature. This seems unusual, as the term itself is value neutral. It is neither 
intrinsically "good" nor "bad," but rather an agnostic phenomenon. Indeed, as out- 
lined in the introduction, established State military forces in the conduct of warfare 
can deploy a form of structural lawfare. 

In the contemporary environment, allegations of lawfare are routinely cited as a 
tool used by insurgents or other non-State actors in actions against State military 
forces. This is the version of lawfare that has become more typically associated with 
the term. Hence, US Army lawyer Eric Jensen identifies that in the context of asym- 
metric warfare, an opponent will seek to exploit an adversary's weaknesses to seek 
tactical or strategic advantage. Such weaknesses are not necessarily those of military 
capacity, but rather are more intangible and revolve around inciting violent reac- 
tion that feeds public disquiet. Thus, "[i]n this type of conflict, the disadvantaged 
party must seek to use the comparatively low-tech tools at its disposal to gain the 
comparative advantage." 11 Such non-State groups will openly violate the law in 
order to strike at a more militarily superior though legally bound (thus restrained) 
force. As outlined by Jensen, such subversion takes the form of attacking from pro- 
tected places and using protected places or objects as weapons storage sites, fight- 
ing without wearing a proper uniform, using human shields to protect military 
targets, using protected symbols to gain military advantage, murdering prisoners 
or others who are protected and not distinguishing oneself from the general popu- 
lation when taking a direct or active part in hostilities. 12 

The types of incidents detailed by Jensen almost always have an exception for 
the use of force by opponents. Under positive prescriptions of the law, protected 
places lose their immunity when used for military purposes, 13 human shields may 
not be directly attacked (at least when not voluntary) but become part of the inci- 
dental injury calculation under proportionality assessments, 14 and while fighting 
without a distinguishing uniform does threaten greater civilian loss due to mis- 
identification, it does not prohibit State military forces from targeting those taking 
a direct part in hostilities (DPH). 15 



330 



Dale Stephens 

The point is not that legal arguments can't be relied upon in favor of surmount- 
ing these tactics, but rather that the political and social consequences of relying 
upon such exceptions can cause a negative effect. These exceptions highlight the 
moral dilemmas and political and social costs faced by soldiers when engaged in 
such conflict. 

In this sense, it is significant that the main concern about lawfare is in fact the 
broader context in which law is invoked. Hence, as Casey and Rivkin state: "The 
term 'lawfare' describes the growing use of international law claims, usually factually 
or legally meritless, as a tool of war. The goal is to gain a moral advantage over your 
enemy in the court of world opinion, and potentially a legal advantage in national 
and international tribunals." 16 

It became clear during the counterinsurgency (COIN) operation within Iraq 
that insurgents invariably used unlawful means to intimidate the population and 
discredit the government. The whole point of using such unlawful means was 
specifically to invoke an overreaction by counterinsurgent forces. Provoking vio- 
lation of counterinsurgent ethics and values in reacting to an insurgency is a 
means to an end, namely, discrediting the legitimacy of the host government and 
the counterinsurgent forces themselves. As David Kilcullen notes, Al Qaeda in 
Iraq drew the majority of its strength from the "backlash engendered by counter- 
insurgent overreaction rather than genuine popular support." 17 

When examined in these terms, the reaction against lawfare turns out to be less 
about the law itself than about the broader question of a political and moral reac- 
tion to the application of force that has the capacity to undermine military effec- 
tiveness. In this context, LOAC (and its sustaining interpretive model) is not 
particularly adept at providing a sufficiently calibrated response. The law is largely 
framed in a binary manner. It mainly deals with categories of persons: combatants, 
civilians and those hors de combat. It restricts attacks against military objectives 18 
and prohibits attacks against those objects that are civilian. 19 It does not deal very 
well with nuance or effect. Hence within this binary code, decisions are made in an 
essentially "yes" or "no" manner — viz., this military object over there may be at- 
tacked, that civilian one here may not; these civilians are a proportionate loss but 
those ones are not. Issues such as whether the object to be attacked is a church or a 
mosque that is being used for a military purpose have no formal relevance as a 
matter of law. Neither does the question whether the civilians who will incidentally 
die as a result of a proportionality equation are individuals who may be part of a 
particular broader social network. These underlying social and political factors are 
simply accorded no formal legal weight. 

Notwithstanding this, attacking such objects, while lawful, will often have the 
inevitable effect of galvanizing resistance by a resident population, which, in turn, 

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The Age ofLawfare 



may well undermine broader strategic goals. Similarly, whether an insurgent is a 
hard-core fanatic determined to die in his or her cause or an "accidental guerilla" 20 
loosely swept into a broader movement is of no account as a matter of formal law; 
each may be targeted under DPH criteria. While some scholars have ventured that 
there may exist some level of cultural relativity in making assessments of "military 
advantage" or "proportionate" loss, 21 the broad sweep of the law is predicated 
upon a conception of exchangeable universal value. There exists a pretense of 
mathematical certainty in making assessments of "military advantage units" versus 
"civilian loss units." To this end, the appeal of universality sustains the law. It may 
be enough to respond to allegations of lawfare to say that "this is the law" and what 
we do is "lawful." In certain contexts and to certain audiences, such assertions may 
be conclusive. In other circumstances and for other audiences, they may not be. 

The reference to "the court of world opinion" identified by Rivkin and Casey 
has both an international and a domestic application. As discussed above, entirely 
lawful attacks within a theater of operations can result in popular resentment by 
those within that battlespace that translates into practical resistance. Equally, 
resistance may be manifested within domestic polities at home and can galvanize 
domestic reaction and decisively undermine military capacity. Hence, as Dunlap 
has observed when addressing this issue in the context of the Vietnam War: 

The United States has already seen how an enemy can carry out a value-based asym- 
metrical strategy. For example, one of the things that America's enemies have learned 
in the latter half of the 20th century is to manipulate democratic values. Consider the 
remarks of a former North Vietnamese commander: "The conscience of America was 
part of its war-making capability, and we were turning that power in our favor. Amer- 
ica lost because of its democracy; through dissent and protest it lost the ability to mobi- 
lize a will to win." By stirring up dissension in the United States, the North Vietnamese 
were able to advance their strategic goal of removing American power from Southeast 
Asia. Democracies are less-resistant to political machinations of this sort than are the 
totalitarian systems common to neo-absolutists. 22 

These lessons have been fully absorbed by military professionals, especially by 
military lawyers. It has become clear that there are "good" and "bad" wars, just as 
there are wars of necessity and wars of choice. 23 Public conscience on issues of 
force in relation to both the jus ad helium and jus in hello has real impact. As a result, 
the levels of discretion exercised under the law differ due to imposed government/ 
command policy restraints. While prevailing textbooks and restatements of LOAC 
present a picture of almost clinical certainty, the truth of the matter has always 
been more nuanced. Law and legal interpretation are modulated. Legal rectitude is 
the starting point and of course universal prohibitions are always formally 



332 



Dale Stephens 

acknowledged (i.e., not attacking civilians, respecting hospital ships, etc.), but legal 
interpretation invariably accommodates implicit counter-lawfare elements at 
least as a matter of policy overlay. Legitimate targets are not attacked and extraor- 
dinary measures are taken to spare civilian populations from any incidental injury. 
Is this approach consistent with positivism's method? Is this really a policy overlay 
or does it fall within "proper" legal interpretation? As will be outlined in Part II 
below, such accommodations may still be conceived as validly coming within the 
structure of positivism's methodology. 

Part II. Positivism, Legitimacy and Lawfare 

Law and Morality 

Positivism remains the dominant interpretive idiom of LOAC. As an interpretive 
style, it is venerable and hardy and has withstood numerous challenges to its domi- 
nance throughout the twentieth century. While regarded as too illusory by some 
scholars, 24 it nonetheless heralded a momentous change to international law when 
embraced at the turn of the nineteenth to the twentieth century. Reading accounts 
of international law in the 1920s, one gets a palpable sense of positivism's great 
emancipatory promise. 25 While international law in the nineteenth century was 
largely bound up in sovereign prerogatives and naturalist conceptions, the onset of 
the twentieth century saw law harnessed for progressive causes. Positivism was the 
means by which such progress was to be realized. While international courts ini- 
tially resisted impositions by positive law on sovereign prerogatives, 26 over time 
even these nebulous rights were quietly relegated as products of an earlier era. 27 

The legal philosopher H.L.A. Hart in his 1962 account The Concept of Law prob- 
ably best describes positivism's contemporary structure. 28 To Hart, positivism was 
fundamentally centered on a separation thesis, that is, legal validity was not neces- 
sarily tied to any moral inquiry. 29 Rather law was a combination of primary and 
secondary rules that was sustained by an inner social perspective of law's officials. 30 
The rule of recognition was the most significant secondary rule, 31 and essentially 
established what was law in terms of pedigree. The rule of recognition itself was 
based upon social fact. Significantly, words did a considerable amount of work 
within positivism and Hart conceived of a duality of core and penumbra for fram- 
ing interpretive discourse. 32 Within the core, words possessed unassailable mean- 
ing. Law was thus ascertainable and largely predictable. At the border of the core, 
within the narrow penumbral region, the law was less determinate and a broader 
level of discretion was permitted to determine legal outcomes. Indeed, Hart al- 
lowed for a policy- or legislative-type reasoning within this narrow band. 33 



333 



The Age ofLawfare 



The separation thesis, which sustains much of Hart's approach, was famously 
outlined in an exchange with Harvard professor Lon Fuller in a series of articles 
appearing in the 1957-58 edition of the Harvard Law Review. 54 In question was the 
status of laws passed during the Nazi regime in Germany. Fuller invoked a form of 
naturalist legal methodology to argue that such edicts could not constitute law. 
Hart presented a differing view; while such laws were morally bankrupt, they 
nonetheless still constituted law properly adopted in accordance with a prevail- 
ing process. 35 Importantly, Hart did fully acknowledge that while they were still 
deserving of the name "law," one could nonetheless rely upon personal moral 
grounds not to obey such law. 36 

This dichotomy reveals much about positivism that has application within 
LOAC reasoning and more broadly within the context of lawfare. While it is plain 
that "no sensible positivist . . . would claim that morality is never relevant or nec- 
essary for legal interpretation," 37 positivism is essentially a non-directive form of 
interpretation. 38 When one is resolutely within the core meaning of words (and 
sentences) 39 there remains a requirement to follow the course of such wording to 
its necessary end to reach an inevitable legal result. This is done notwithstanding 
that what occurs may in fact appear to be "a wrong or unjust or unwise or inequi- 
table or silly result." 40 This differentiation between law as it "is" and what it 
"ought" to be (at least within the core) has the potential to cause blind spots and 
contradictions in legal interpretation. Yet, it is resolutely defended by many as the 
appropriate measure of legal interpretation and has resisted inroads by alternative 
legal theories. Former US Attorney General Michael Mukasey has, for example, 
strenuously argued that government lawyers must ensure they only "do law." 41 He 
outlines that a lawyer's primary duty is 

to define the space in which the client may legally act. . . . [Tjhere will be times when 
you will advise clients that the law prohibits them from taking their desired course of 
action, or even prohibits them from doing things that are, in your view, the right thing 
to do. And there will be times when you will have to advise clients that the law permits 
them to take actions that you may find imprudent, or even wrong. 42 

Judge Higgins in a famous defense of this methodology reaffirmed the perspective 
that the practice of law is best conceived of as the application of "neutral princi- 
ples" to achieve predictable outcomes. 43 

This conception is reflected in traditional approaches to interpreting LOAC. 
There is usually an emphatic confidence in the literature that LOAC is comprised 
of a broad core of validity. To be sure, even a provision such as the famous Martens 
clause that makes a direct appeal to the "dictates of public conscience" 44 has been 



334 



Dale Stephens 

strenuously argued to be no more than an aid to interpretation of existing positive 
law and certainly not a source of legal authority in its own right. 45 

This reliance upon pedigree of legal norms and the strong confidence placed in 
the core structure of words seems a little too emphatic in the literature. Indeed, 
such a patois might be read as reflecting a type of anxiety as to the capacity of law to 
actually restrain violence. The LOAC project was always placed between a promise 
and a fear 46 that law would intercede and ameliorate the excess of warfare's 
violence. 

Given the strong differentiation between law, morality and policy consider- 
ations, at least resident within core meanings of words and sentences, there should 
be little surprise that lawfare is derided as unfair. Compliance with the law con- 
cerning the propriety of certain attacks is the formal answer to those who take issue 
with the moral, social and political consequences of such attacks. Lawyers are ill 
equipped to respond with anything more than extolling the virtue of compliance 
with the law as it exists. Arguments in support of structural rectitude and of lin- 
guistic construction are what sustain legal responses. Despite this, to relevant 
publics "out there" such exquisite compliance and faithfulness may not be persua- 
sive, indeed may not be worth "two straws." 47 This necessarily leaves open a num- 
ber of vulnerabilities to such advocacy. 

It also relies upon the picture painted by Hart (and others) that the law com- 
prises a large inner core of meaning. If, in fact, the law (especially LOAC) is less de- 
terminate than what many imagine, if language is so intrinsically malleable that we 
can flip between the core and the penumbra with greater ease than what we antici- 
pate, then many of the assumptions that underpin "proper" interpretive technique 
become undone. However, in accepting these factors we have new challenges, but 
also better opportunities to align legal advice with a greater moral and political 
acuity and so may confront lawfare more instrumentally. 

Core/Penumbra and the Malleability of Language 

Many scholars have critiqued the semantic certainty implicit in the core/penumbra 
distinction. Winter, for example, observes that Hart fails to appreciate that the cog- 
nitive process of ascribing a purpose to words that we necessarily make means the 
"distinction between a policy-free core and a penumbra of 'legislative' freedom 
necessarily collapses." 48 According to Winter, we all operate in accordance with 
tacit knowledge and seek to attribute a meaning to words that will give effect to an 
underlying policy. Language is by nature malleable, rendering the placement of a 
firewall between open (penumbra) and closed (core) discretion an arbitrary exer- 
cise. Duncan Kennedy has adeptly demonstrated that the "self-evident" placement 
of words within the core or penumbra is a highly contentious exercise. Hart 

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advocated that "plain cases" 49 would always be easily discernible, but Kennedy ar- 
gues that through "legal work" 50 we can find ourselves within either the con- 
strained core or the open textured penumbra whenever we wish to exercise a more 
political discretion. Either way, we can construct a desired result. In essence, Ken- 
nedy concludes that determinacy is "a function of the worlds of valid norms, and of 
the content of other sources, and also of their interaction with the resources and 
strategies of whoever has the power to do legal interpretation." 51 

The Malleability of Language and Common Article 3 

The malleability of language within LOAC was amply demonstrated in the course 
of the internal Bush administration debates concerning the application of Com- 
mon Article 3 (CA 3) to the war in Afghanistan. Writing in January 2002, Deputy 
Assistant Attorney General John Yoo determined that the conflict then under way 
in Afghanistan was an international armed conflict. However, according to Yoo, 
neither Taliban nor Al Qaeda detainees were accorded prisoner of war status, be- 
cause Afghanistan was a "failed State" and therefore the Geneva Conventions did 
not apply. 52 The question then to be decided was whether CA 3, which set a mini- 
mal humanitarian standard for detainee treatment, applied as a matter of law. Yoo 
determined that it did not and drew heavily upon a textual analysis of the provi- 
sion. Significantly, the opinion Yoo drafted had an especially narrow determina- 
tion of the application of CA 3 of the four 1949 Geneva Conventions. Yoo opined 
that CA 3 (which applies to "conflicts not of an international character") was in- 
tended to apply only to a condition of civil war or "large scale armed conflicts be- 
tween a State and an armed movement within its own territory." 53 

The opinion specifically relied upon a close textual analysis, as well as a histori- 
cal account of the negotiating history and past practice of States. It concluded that 
if CA 3 was to have a "cover all" reach, then it would have used "broader lan- 
guage." 54 The "precise language" 55 actually used restricted it to the type of conflicts 
identified. 

In reply, William Taft, the Department of State's Legal Advisor, responded by 
taking issue with the reading of the applicability of the Geneva Conventions, 
stressing that "[t]he President should know that a decision that the Conventions 
do apply is consistent with the plain language of the Conventions." 56 Moreover ap- 
plication of the Conventions "demonstrates that the United States bases its con- 
duct not just on its policy preferences but on its international legal obligations." 57 

Ultimately, President Bush determined that CA 3 did not apply dejure but "as a 
matter of policy" humane treatment to the extent "consistent with military neces- 
sity" 58 would be accorded to detainees. 59 



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Dale Stephens 

Subsequently, the executive assertion that CA 3 did not apply to the conflict 
with Al Qaeda was litigated before the Supreme Court. In the 2006 Hamdan case, 60 
the Court held that the term "conflict not of an international character" contained 
within CA 3 was used in contradistinction to "conflict between nations." Hence 
the phrase "'not of an international character' bears its literal meaning" 61 and, as 
such, applied effectively to all armed conflicts that are not between nation-States, 
thus constituting CA 3 and its minimal standards as a "cover all." 

The remarkable feature of this composite line of executive and judicial reason- 
ing was the reliance upon "precise," "plain" and "literal" meaning of the words and 
yet such reliance produced widely divergent conclusions. In its terms the Yoo 
opinion was a credible enough exposition of the law, yet it seemed profoundly 
wrong in its recognition of a gap vis-a-vis a legal obligation to observe even mini- 
mal humanitarian standards for detainees. Were Taft and the Supreme Court 
better at linguistic construction and was CA 3 terminology "self- evidently" in the 
core of meaning? Or perhaps was "legal work" at play? Was this rather about wise 
international relations (IR) policy, 62 or perhaps checking executive excess 63 or per- 
haps retaining a moral high ground for instrumental reasons? 64 

The debate about the semantic placement of CA 3 is replicated with numerous 
key terms throughout LOAC. Issues concerning the correct interpretation of "mil- 
itary advantage," 65 of the "nature" of an objective that renders it liable to attack, 66 
of whether "war-fighting or war-sustaining" capability is a legitimate military ob- 
jective, 67 of how "reasonable" must be the grounds for boarding and attacking ves- 
sels under the right of visit and search or blockade in naval warfare, 68 of the issue of 
sufficient "effectiveness" in aerial and naval blockade, 69 of the application of the 
precautionary principle to weapons selection (particularly by those countries pos- 
sessing high- technology weaponry) 70 and, of course, what counts as "proportionate" 
loss 71 are all illustrative of the many interpretive issues that occupy contentious 
and/or ambiguous decision making under the law. Invariably many of these mat- 
ters are usually decided by recourse to "judgment." 72 Within this indeterminacy it 
becomes evident that legal arguments are calibrated less in terms of lawful and un- 
lawful, and more in terms of differing degrees of lawfulness. In so doing, a different 
style of legal reasoning develops that is more amenable to policy influence. Perhaps 
this can be reconciled with Hart's sense of penumbral reasoning, or perhaps it indi- 
cates that the register of legitimacy (with a small dose of Holmes's predictivism) 73 
provides better explanatory power for how LOAC is applied in practice, an expla- 
nation that gives a sufficient basis to deal with the political and moral advantage 
sought to be generated through lawfare. 



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The Register of Legitimacy 

Writing in 1952, Sir Hersch Lauterpacht famously observed that "if international 
law is ... at the vanishing point of law, the law of war is perhaps even more conspic- 
uously at the vanishing point of international law." 74 This dire warning of LOAC's 
diminished relevance has in fact been breathtakingly challenged in succeeding 
years and rendered meaningless. Over the past few decades there has been an "ex- 
plosion" of treaties, restatements, handbooks, institutional assimilation and deep 
professional military and academic investment with LOAC. This has been partly 
driven by a strategy of pragmatic engagement by humanitarian voices. 75 

Rather than law becoming assimilated at the "vanishing point" of international 
politics, the reverse seems to have happened. LOAC and its underlying principles 
have been embraced by political elites and invoked in a vernacular of legitimacy to 
further broader strategic claims. Certainly from the first Gulf War onward, law 
has been invoked and heralded as providing decisive support for broader cam- 
paign advocacy. 76 There is no doubt now that compliance with the law forms part 
of the political discourse as to the legitimacy of a conflict. Witness the negative con- 
sequences of the Abu Ghraib events in Iraq, 77 or even more recently, the German- 
initiated tanker attack in Afghanistan, 78 to identify the correlation between jus in 
hello considerations and broader political and social identification with the legiti- 
macy of a military campaign. 

This phenomenon is being tracked within the legal literature. David Kennedy 
has observed that the practice of international law, and especially that of LOAC, 
has become a variegated process of input and reaction from relevant constituen- 
cies. Traction of legal arguments has become measured more in terms of persua- 
sion within such constituencies than technical mastery of legal construction. In 
short, a register of legitimacy complements that of legality. Kennedy notes that 
'[international law has become the metric for debating the legitimacy of military 
action . . . [and that] law now shapes the politics of war," 79 and, further: 

In the court of world public opinion, the laws in force are not necessarily the rules that 
are valid, in some technical sense, but the rules that are persuasive to relevant political 
constituencies. Whether a norm is or is not legal is a function not of its origin or pedi- 
gree, but of its effects. Law has an effect — is law — when it persuades an audience with 
political clout that something someone else did, or plans to do, is or is not legiti- 
mate. . . . The fact that the modern law in war is expressed in the keys of both validity 
and persuasion makes the professional use of its vocabulary both by humanitarian and 
military professionals a complex challenge. 80 

In this context, ethical and political corroboration with legal rules becomes in- 
evitable. We leave behind the smooth reassurance of an external judicial standard 

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Dale Stephens 

and enter a more dynamic though unfamiliar and contentious world — one where 
law has its rightful place, but its purchase is of a variable nature. In describing this 
recent phenomenon Kennedy observes: 

International lawyers became less interested in whether a rule was valid — in the sense 
that it could be said to be rooted in consent, in sovereignty or in the nature of an inter- 
sovereign community — than in whether it worked. International law was what inter- 
national law did. The observations of sociologists or political scientists about what 
functioned as a restraint or a reason became more important than the ruminations of 
jurists in determining what international law was and was not. As one might imagine, it 
became ever less possible to say in advance or with precision what rules would, in fact, 
be effective as law. To do so was to make a prediction about what would, in the end, be 
enforced. Acting under cover of law became a wager that the action's legality would be 
upheld in the unfolding of state practice. Moreover, it became clear that the effective- 
ness of rules depended less on something intrinsic to the rule than on aspects of 
society — how powerful was its proponent, how insistent its enforcement, how persua- 
sive its reasons to the broad public who would determine its legitimacy. 81 

The perspective presented by Kennedy concerning the variable nature of legal 
norms is representative of a wave of critical reassessment. Over the recent past 
there have been a number of theories put forward that seek to rationalize the rela- 
tivity of legal norms within international law. Whether predicated upon notions 
of "compliance pull" 82 or theories of transnational politico-legal iteration, 83 they 
all share recognition of a corroborative role of politics/policy as fused with con- 
ceptions of legitimacy. In assessing the themes proffered, a model of the law as a 
justificatory discourse 84 begins to emerge, one that belies too obvious political 
self-interest with appeals to a broader legitimacy. This is not to say that bad legal 
arguments cannot still be distinguished from good ones. 85 It does acknowledge 
though that the vernacular of persuasion has more resonance than appeals to ped- 
igree or some kind of external validity. As one commentator has noted, legal dis- 
course within the international realm is not 

the search for some legal truth "out there," waiting to be discovered. It is a practice that 
operates on the basis of common understandings and shared beliefs about the relation- 
ship governed by the rules in question. Thus interpretation of international law is the 
search for an intersubjective understanding of the norm at issue. 86 

Critically, the point is not one of "all things considered" subjective policy 
choice, but rather choice within the indeterminacy of the law. Such choice has been 
likened to "politics within the law" 87 or perhaps the "legalisation of politics." 88 In 
determining how choices are to be made, some commentators have pointed to the 



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role of "general principles" of the law as reflected in Article 38(l)(c) of the Statute 
of the International Court of Justice as providing a durable catalog. Such principles 
proliferate throughout international law and often form complementary and op- 
posing pairs. 89 Hence within LOAC, the principle of military necessity is counter- 
poised against the principle of humanity, and each may be relied upon to advance a 
particular interpretive perspective. Kalshoven has argued that such principles 
themselves reflect particularized social, historical and ethical traditions and are 
sustained by an "inner force" 90 that is "moral in nature." 91 

The move to a frame of legitimacy and to acknowledging the power of political 
persuasion as part of a justificatory process signals a significant departure from the 
positivist firmament of external standards and linguistic precision. Perhaps we are 
still within the positivist frame but are situated deeply within the penumbral region 
described by Hart where a more freewheeling exercise of policy-like discretion is 
permitted. If so, the penumbra is more than just a narrow band, but rather occu- 
pies a much larger space. The type of legal practice and interpretive style currently 
being theorized actually signals a reflection of the type of reasoning advanced by 
the American legal realist movement of the 1920s and '30s. This movement sought 
to accommodate the indeterminacy of law and in so doing wanted to implement a 
more self- aware process of legal reasoning 92 — one critically predicated upon a con- 
ception of social scientific methodology that could more productively guide rele- 
vant canons of interpretation. 93 

Counterinsurgency, Stabilization Operations and American Legal Realism 

This move to a more instrumentalized form of legal reasoning has found explicit 
expression in the recently published US COIN and stabilization doctrines. Legal 
interpretation of LOAC became contextualized in seeking to achieve specific political 
and military outcomes. The US COIN doctrine was developed against the exigencies 
of the increasing violence in Iraq in 2005-6. General Petraeus and others reviewed 
counterinsurgency best practices, and thinking "outside the box" developed a 
strategy for dealing with the increasingly pressing insurgency. It was in fact a blue- 
print for "a strategy waiting to be implemented as everything else failed in Iraq." 94 

The resulting COIN manual grapples with the new realities of postmodern war 
and recommends decisive change. Indeed, the introduction to the manual makes it 
very clear that it intends to set a new course. Within the first paragraph, the point is 
abruptly made that "[t]hose who fail to see the manual as radical probably don't 
understand it, or at least understand what it's up against." 95 

The manual deals with a number of legal propositions and directs an interpre- 
tive methodology that is decisively instrumental. These are tailor-made to attain 
strategic effect within the context of an insurgency. The doctrine contains a number 

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Dale Stephens 

of paradoxes that seem counterintuitive to prevailing approaches to legal interpre- 
tation. These include: 

• Sometimes, the more you protect your force, the less secure you may be, 96 

• Some of the best weapons for counterinsurgents do not shoot, 97 

• Sometimes, the more force is used, the less effective it is, 98 and 

• The more successful the counterinsurgency is, the less force can be used and 
the more risk must be accepted. 99 

It is evident that COIN doctrine knowingly places greater physical risk on coun- 
terinsurgent forces. It fully concedes that choices will need to be made that will re- 
sult in higher counterinsurgent casualties. These truisms necessarily test resolve as 
well as public expectation. They also provide a meaningful counter to the political 
and moral advantage that is sought by insurgent forces through lawfare techniques. 
It turns out that political and social success in the field provides the best antidote to 
lawfare susceptibility at home as well as within the relevant theater of operations. 100 
The COIN and stability operations doctrines have proven, within Iraq at least, to 
provide a reliable framework to reach that goal. General restraint and an allocation 
of particular ethical and social value to the consequences of violence have provided 
a more durable context for legal interpretation. 

Within an insurgency, those taking a direct or active part in hostilities are osten- 
sibly targetable under the DPH provisions of LOAC. As outlined earlier in this arti- 
cle, little differentiation is traditionally made between hard-core insurgents and 
those who are more loosely associated with an insurgency (but who nonetheless 
come within the DPH formula). There is, as previously highlighted, an assumption 
of mathematical precision that underpins this approach to legal reasoning under 
LOAC. In challenging this blanket legal categorization the Multi-National Force- 
Iraq guidelines, reflecting the COIN doctrine, introduced a more nuanced target- 
ing strategy that was based upon the question of reconcilability and modified legal 
approaches. Hence the guidelines stated bluntly: 

We cannot kill our way out of this endeavor. We and our Iraqi partners must identify 
and separate the "reconcilables" from the "irreconcilables" through engagement, pop- 
ulation control measures, information operations and political activities. We must 
strive to make reconcilables a part of the solution, even as we identify, pursue and kill, 
capture or drive out the irreconcilables. 101 

This required a greater use of intelligence to understand deeper tribal and pro- 
vincial networks and allegiances. Understanding relevant ethnography and intra- 
tribal group dynamics gave a better context for instrumental thinking. It also 



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meant that a substantive differentiation could be made between the hard-core in- 
surgent and the "accidental guerilla" with respect to targeting. These more 
nuanced approaches combine with a revised legal interpretive methodology that 
seeks to promote a particular effect with respect to targeting choices. 

In relation to the principle of proportionality, the COIN manual similarly sig- 
nals a self-conscious variation on the manner in which this legal standard is usually 
interpreted by concentrating upon political and social alienation. The manual 
states: 

In conventional operations, proportionality is usually calculated in simple utilitarian 
terms: civilian lives and property lost versus enemy destroyed and military advantage 
gained. In COIN operations, [military] advantage is best calculated not in terms of how 
many insurgents are killed or detained, but rather which enemies are killed or detained. 
... In COIN environments, the number of civilian lives lost and property destroyed 
needs to be measured against how much harm the targeted insurgent could do if al- 
lowed to escape. 102 

The commentary notes that the principles of discrimination and proportional- 
ity have an additional sociopolitical significance that must be factored into any in- 
terpretive exercise under the law, stating that "[f]ires that cause unnecessary harm 
or death to noncombatants may create more resistance and increase the insur- 
gency's appeal — especially if the populace perceives a lack of discrimination in 
their use." 103 

Law, Legitimacy and Interpretive Space 

In reconciling the recourse to legitimacy with legal interpretive theory, a broader 
opportunity arises to grapple with lawfare — not least of which is the ability to 
meaningfully address the political and moral advantage sought by non-State ac- 
tors. The COIN and stability operations doctrines provide an illuminating insight 
into how the calibrated application of force can result in achieving identified military 
and political effects at the tactical, operational and strategic levels. Indeed, military 
journals these days disclose a fascination by military operators with the implica- 
tions of force in terms of psychological, sociological and anthropological effect as a 
means of fulfilling mission accomplishment goals. 104 Military lawyers have, of ne- 
cessity, been part of that experience. 

When we speak in the register of legality in familiar terms of classic modern positiv- 
ism, we must be aware of what this implicates and the vulnerabilities it exposes. We 
still rely upon this methodology because it retains sufficient explanatory "horse- 
power" for some audiences in some circumstances. Such circumstances would, of 
course, encompass formal litigation processes. They would also be more likely in a 

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Dale Stephens 

"State-on-State" conventional warfare context, which is the background in which 
LOAC was principally developed, or even when dealing with an "irreconcilable" in a 
COIN context. The disquiet that is felt by some that lawfare techniques can under- 
mine military efforts seems geared to this concept and context of legal exposition. 

As has been outlined, however, the register of formal legality is not well 
equipped to deal with social, political or moral critiques. But this is only one con- 
cept or version of interpretive valence. In a broader day-to-day context, the inter- 
play between law, legitimacy, policy and politics has become well understood by 
military lawyers, if not expressly, at least intuitively as a different narrative of the 
law. Some might reconcile these interactions as mere policy overlay of hard law at 
the core of legal meaning. Or they could perhaps be reconciled as occurring in the 
(broad) penumbral region of discretion of Hart's conception of positivism, or by 
invoking and assimilating American legal realist techniques (we are, after all, "all 
realists now"), 105 or perhaps as forming a competing legal methodology of norma- 
tive legal relativism and pluralism. 

However these interactions are reconciled from a theoretical perspective, the 
fact is that military lawyers have in practice adopted a more informed attitude to 
interpretation that has kept pace with broader national and international strategies 
for military action. The recent COIN and stabilization doctrines and their support- 
ing interpretive legal approaches are designed precisely to counter adverse political 
and social reaction in order to obtain military advantage. They represent strong el- 
ements of counter-lawfare in their ontological premise. As will be discussed below, 
departing the safe moorings of a register of legality for one of legitimacy allows for a 
more instrumental approach to achieving mission outcomes. Though not without 
risk, it also offers the means by which lawfare techniques used by non-State actors 
can be decisively met and defeated. 

Part HI, Legal Choice by Military Lawyers in a Pluralist Environment 

If, as I have contended, the legal framework of LOAC generates considerable inter- 
pretive space, military lawyers necessarily have a complex responsibility in recon- 
ciling multiple factors when shaping their advice. Notwithstanding this challenge, 
it is a theme of this article that military lawyers are well equipped to deal with 
lawfare. Such skills have developed quite independently as part of the general nature 
of dispensing advice within LOAC practice. The purpose of this part is to explore 
the exogenous factors that underpin military legal decision making. First will be an 
analysis of means-ends rationality, looking particularly at IR theories as to how 
the law is used to mobilize political action. Second will be an examination of 
constructivism, which seeks to demonstrate how internalization of normative legal 

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standards can result in generating a sense of self- identity and interpretive attitude. 
Finally, the part will conclude with a survey of virtue ethics, which have particular 
resonance within the military ethos and can be understood as a basis for adopting 
particular legal strategies of support or resistance. 

Means-Ends Rationality and Politicization of Law 

Public opinion is often readily acknowledged by military lawyers as having 
considerable effect in driving government policy. Of course in the context of 
lawfare, domestic public opinion is a decisive strategic target, yet there is little un- 
derstanding of how law gets metabolized by advocates to prompt the type of politi- 
cal mobilization that subsequently shapes opinion. 

To this end international lawyers and international legal scholarship generally 
exhibit what Jack Goldsmith has referred to as a "methodological unsophis- 
tication." 106 Lawyers generally have a predilection to favor formal over functional 
and are less interested in examining causality. 107 They tend to assume law's role in 
directing policy choice as a given. Conversely, IR theory seeks to explain interna- 
tional behavior more "realistically" and thus takes "theoretical, methodological, 
and empirical issues more seriously, and . . . draw[s] more generously on econom- 
ics, sociology, and history." 108 Generally speaking, IR scholars review international 
behavior in terms of power, interests, institutions, beliefs or ideas. International 
law can have normative effect within these mechanisms of influence but not in the 
manner in which most lawyers possibly anticipate. 

In describing how international legal norms can be invoked to initiate or sustain 
political mobilization, Simmons observes that treaty ratification can be seen as an 
anchor for creating domestic and international advocacy networks; hence 
' [t]reaties can change values and beliefs and can change the probability of successful 
political action to achieve the rights they promulgate." 109 She notes that ratification 
affects elite agendas, supports litigation and has a particular capacity to mobilize 
political action among epistemic communities. 110 Treaty ratification, according to 
Simmons, signals not only a "costly signal of intent," but also marks a decisive step 
in "domestic legitimation," thus fostering a precommitment to receptivity by a 
government, increases the size of the mobilizing coalition, enhances "intangible" 
resources and expands the range of political and legal compliance strategies. 111 
Similarly, Keck and Sikkink catalog how treaty ratification creates channels of ac- 
cess for those motivated by shared values and structured mechanisms for informa- 
tion exchange. These authors present both rationalist (language of incentives and 
constraints, strategies, institutions, rules) and constructivist (norms, social rela- 
tions and intersubjective understandings) foundations to ground their analysis of 
the mechanisms of social and political pressure that can be generated by 

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Dale Stephens 

politicizing legal norms. 112 Interestingly, the authors refer to "frames" of mean- 
ing 113 to "alter the information and value contexts within which states make poli- 
cies," which in turn involve "not just reasoning with opponents, but also bringing 
pressure, arm twisting, encouraging sanctions, and shaming." 114 

The concept of framing provides a useful context for understanding LOAC 
politicization. The issue of banning anti-personnel landmines, for example, which 
ultimately resulted in the drafting of the Ottawa anti-personnel mines conven- 
tion, 115 was originally discussed in terms of military utility and saving soldiers' 
lives. When the debate was subsequently "framed" by advocates in terms of indis- 
criminate effect upon civilians, there developed an unstoppable momentum for 
universal banning. It is in the context of individual vulnerability to military vio- 
lence that political mobilization of LOAC norms seems to be the most effective. 
Keck and Sikkink note that "issues involving physical harm to vulnerable or inno- 
cent human individuals appear particularly compelling" 116 for network organiza- 
tion (issue of framing personified). Consistent with this observation, it is not 
surprising to see that trenchant arguments of lex specialis vis-a-vis international 
human rights law are usually relaxed when it comes to issues such as detainee treat- 
ment. Even if the de jure extraterritorial application of human rights law is not 
accepted, at least its normative underpinnings are observed through humanitarian 
policy stipulations — partly as recognition of that public expectation that such stan- 
dards will be applied. 

This recognition of the use of law to press moral and political leverage from a 
domestic audience is not lost on military lawyers and, of course, is relied upon as 
part of any lawfare campaign. Means-ends rationality concerning public support is 
implicitly part of the military decision-making calculus that underpins approaches 
to the law, whether consciously acknowledged or subconsciously registered. LOAC 
includes tremendous license for the application of destructive power; however, its 
full exercise is unlikely to be pressed. Indeed, legal assessment of mainstream military 
action is rarely undertaken to decide whether something is legal or illegal. Rather, 
as previously noted, it is much more a case of deciding between various iterations 
of legal justification and construing the better arguments, which may range from 
merely colorable through to compelling. Deciding whether something is merely 
legal, of course, does not mean that it is good policy and this is where means-ends 
rationality invariably enters the equation. Questions concerning public support, 
institutional reputation, ethical orientation, self-image, internal discipline and nu- 
merous other inchoate factors are part of that mix. In discussing the nature of the 
resistance exhibited by a number of senior US military lawyers to aspects of the 
Bush administration's legal framework for the war on terror, Hatfield notes: "The 
military lawyers deferred to the law as an accumulation of hard-won institutional 

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wisdom. They believed the law against torture to be a reality-based warning to keep 
us from being doomed to learn the same lessons (usually referred to as 'those from 
Vietnam') again and again." 117 

The Vietnam War and its consequences loom large in the literature. There is a 
sense that something intangible was lost in that